'i?h

':W^

Digitized by the Internet Arciiive

in 2008 with funding from

IVIicrosoft Corporation

http://www.archive.org/details/constitutionofcoOOmoorrich

THE CONSTITUTION OF
THE COMMONWEALTH OF AUSTKALIA

THE CONSTITUTION

OF

THE COMMONWEALTH
OF AUSTRALIA.

By W. HARRISON MOORE

•t

OF king's college, CAMBRIDGE, AND OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW
DEAN OF THE FACULTY OF LAW IN THE UNIVERSITY OF MELBOURNE

LONDON
JOHN MURRAY, ALBEMARLE ST.
1902 .

A<

SKo.

^0-^

^'V^^

SPRECKELS

GLASGOW : PRINTBD AT THE UNIVERSITY PRESS
BY ROBERT MACLEHOSB AMD CO.

PREFACE

The writer of a book on the Commonwealth of Australia
has no need to arouse interest in his subject; but his
anxiety must be the greater, lest his exposition should
be unworthy of the matter dealt with, and should fail to
satisfy the expectations of those who, from many very
different points of view, desire to study the new Con-
stitution.

I have departed somewhat from the arrangement adopted
in the Constitution itself, for reasons which I think will
be apparent to those who may use the book. I hope,
however, that the index to the Constitution will enable
readers to use the book as an annotated text.

I append a list of principal works referred to. I have
not in every case made use of the latest editions, partly
because in Australia it is not always easy to obtain them
or even to ascertain what is the latest edition of a work,
partly because the greater number are works of which
libraries and students are as likely to have earlier as later
editions.

I desire to express my thanks to the editors and pub-
lishers of the Quarterly Review, the Laio Quarterly Review,
and the Journal of the Society of Gotnparative Legislation
for permission to make use of articles which I have con-
tributed to' those magazines; in the case of the last-named
journal, I have also to acknowledge the assistance I have
received from the articles which have appeared from time
to time on Modes of Legislation in the British Colonies,

1 0/11 o:^

vi PREFACE.

and from Mr. Wood Renton's article on Indian and Colonial
Appeals to the Privy Council.

To Mr. Justice Inglis Clark, of the Supreme Court of
Tasmania, and to the Hon. W. H. Irvine, late Attorney
General for Victoria, I am indebted for advice and criticism
on particular matters. My thanks are also due to Professor
Jethro Brown, of the University College of Wales, for
reading the proofs and seeing the book through the press ;
and to Mr. Alban C. Morley, of the Victorian Bar, for
assistance in making the indexes and in preparing the book
for the press.

W. H. M.
Melbourne, 1901.

NOTE.

The Publisher thinks it right, on behalf of the Author who is in
Australia, to acknowledge the trouble and care taken by Mr. C.
Eastlake Smith in the final adaptation of the Index and the reading
of the proofs of this book.

CONTENTS

PAOB

Table of Cases, xi

Table of Statutes, xvi

Principal Works Referred to, xx

CHAPTER I.

The Sources of the Laws and Institutions of the

Colonies, 1

CHAPTER II.

The History of Australian Federation, . . . . 19

CHAPTER III.

The Nature and Authority of the Federal Common-
wealth, 62 o^

CHAPTER IV.
"The Constitution" of the Commonwealth, ... 75

CHAPTER V.

Distribution of Powers in the Commonwealth, ... 82 ^

CHAPTER VI.
The Parliament, 92

r

viii CONTENTS.

CHAPTER VII.

PAGE

The Relations of the Senate and the .House of Repre-
sentatives, 1.17

CHAPTER VIII.
The Legislative Power of the Parliament, . . 128

CHAPTER IX.

The Subjects of the Legislative Power of the Par-
liament, 141

CHAPTER X.

The Relation of the Legislative Authorities : The
Imperial Parliament, The Commonwealth Parliament,
The State Parliament : The Validity of Laws, . 165

CHAPTER XI.
Finance and Trade, 180

CHAPTER XII.

The Executive Power : Organization of the Executive, . 210

CHAPTER XIII.

The Federal Executive Council and the Queen's Minis-
ters OF State : The Cabinet System, .... 224

CHAPTER XIV.
The Judicature, 232

CHAPTER XV.

The Appellate Jurisdiction : The Queen in Council and

THE High Court of Australia, 245

CHAPTER XVI.
The Federal Jurisdiction, 258

CHAPTER XVII.

Organization of Courts : Judicial Tenure : The Con-
stitution OF the Federal Courts, 276

\

CONTENTS. ix

CHAPTER XVIII.

PAGE

The States, 282

CHAPTEE XIX.

New States and Territories, • 310

CHAPTER XX.

The Alteration of the Constitution, 316

CHAPTER XXI.
Conclusion, 324

The Commonwealth of Australia Act, 1900 (annotated), . 333

APPENDIX.

A. The Character of Political Unions, .... 362

B. Constitutional Documents relating to Commonwealth

1. Proclamation of Commonwealth of Australia, .

2. Letters Patent creating office of Governor-General,

3. Instructions to Governor-General,

4. Commission appointing Lord Hopetoun Governor

General,

367
368
371

374

Constitutional Documents relating to State :

1. Letters Patent creating office of Governor of State

of Victoria, 375

2. Instructions to Governor of Victoria, . . . 379

3. Commission appointing Sir John Madden Lieutenant-

Governor of Victoria, 382

Index, 383

LIST OF CASES REFERRED TO.

Abbot V. Bayley, 297.

Alcock V. Fergie, 277.

Alger, Commonwealth of Massachu-
setts v., 802.

Alliance Contracting Company v.
Russell, 257.

Ailing V. Sherlock, 304.

American Bridge Co. , Cardwell v. , 205.

American Insurance Company v.
Canter, 313.

American Publishing Company v.
Fisher, 313.

Apollo Candle Company, Powell v.,
77, 130, 177, 179.

Ashbury v. Ellis, 8.

Attorney-General for Canada v.
Attorney-General for Ontario (The
Pardoning Power Case), 219.

Attorney-General for the Dominion
of Canada v. Attorneys-General for
the Provinces of Ontario, Quebec,
and Nova Scotia, 72, 242, 295.

Attorney-General for Hong-Kong v.
Kwok-a-Sing, 86.

Attorney-General of Manitoba,
Brophy v., 193.

Attorney-General for New South
Wales, M'Leod?;., 8, 166.

Attorney-General of Ontario v.
Attorney-General for the Dominion,
1.38, 146.

Attorney-General for Ontario v.
Attorney-General for the Dominion
and the Distillers' and Brewers'
Association of Ontario (The Liquor
Prohibition Case), 133, 139, 174, 306.

Attorney-General for Ontario v.
Mercer, 74, 239, 269.

Attrill, Huntington v., 153.

Baird, Walker v., 261.

Baltimore, Penn v. , 263.

Baltimore and New York Railroad
Company, Stockton v., 157.

Baltimore and Ohio Railway Com-
pany, Inter-State Commerce Com-
mission v., 185.

Baltimore, Mayor of, Barron v. , 202.

Bank of Toronto v. Lambe, 70, 183, 186.

Barbier v. Connolly, 301, 303.

Barron v. Mayor of Baltimore, 202.

Barton v. Taylor, 114, 161, 254.

Bateman's Trusts, in re, 74, 262.

Bayley, Abbot i;., 297.

Belisle, L' Union St. Jacques de
Montreal v. , 132, 147.

Beresford-Hope ?;. Sandhurst, 110.

Bickford, Smith and Company v.
Musgrove, 176.

Bigge, Hill v., 94.

Black, Dow?;., 189.

Blackwood v. Reg., 299.

Blake, Loughborough v., 313.

Blake v. McClung, 295, 296, 297.

Board of Wardens of the Port of
Philadelphia, Cooley v., 199.

Booth by. Justice, case of, 278.

Bowman v. Chicago Railway Com-
pany, 203, 305.

Bowman, Farnell v., 265, 266.

Bradfield v. Roberts, 308.

Brophy v. Attorney-General of
Manitoba, 193.

Buckwalter v. United States, 272.

Bull, Calderv., 85.

Burah, Reg. v., 9, 77, 86, 129, 130.

Butler V. Goreley, 174.

Calder v. Bull, 85.

Cameron v. Kyte, 94.

Campbell v. Hall, 261.

Canter, American Insurance Com-
pany v., 313.

Cardwell v. American Bridge Co. , 205.

Carson, Kielley v., 114.

Chemung Canal Bank v. Lowrey, 296.

Cherokee Nation v. State of Georgia,
260, 269.

LIST OF CASES REFERRED TO.

Chicago, Escanaba Co. v. , 205.
Chicago and U. W. Railway Company,

Bowman r., 203, 305.
Chicago and Alton Railroad v. Wiggins

Ferry Company, 152.
Chicago and Grand Trunk Railway

Company v. Wellman, 238.
Chisholm v. State of Georgia, 258,

266, 267.
Chorlton t'. Lings, 110, 111.
Citizens' Insurance Company of

Canada v. Parsons, 137.
Civil Rights Cases, The, 303.
Claflin V. Houseman, 69, 274.
Clary, Commonwealth of Massachu-
setts u., 71.
Cohens v. Virginia, 69, 163, 271, 274.
Commercial Bank v. McCaskill, 257.
Commissioners of Stampsu. Harding, 6.
Commonwealth of Massachusetts v.

Clary, 71.
Commonwealth of Massachusetts v.

Alger, 300.
Commonwealth of Pennsylvania v.

Standard Oil Company, 299.
Commonwealth of Pennsylvania,

Gloucester Ferry Coy. v. , 299.
Commonwealth of Pennsylvania, Pull-
man's Car Company v., 299.
Connolly, Barbier v., 301, 303.
Connor v. Elliot, 296.
Cook V. Sprigg, 261.
Cooley V. Board of Wardens of the

Port of Philadelphia, 199.
Cooper V. Stewart, 2.
Cooper V. Telfair, 85.
Cortield v. Coryell, 72, 295.
Cornell, United States v.^ 71.
Coryell, Corfield v., 72, 295.
Council of Dover, ex p. County Council

of Kent i;., 242.
County Council of Kent ex p. v. Council

of Dover, 242.
County of Mobile v. Kimball, 204.
Crease, Robertson v. , 258.
Cumings v. Wingo, 296.
Gushing v. Dupuy, 147, 248,249, 255.
Davis, Tennessee v., 271.
Debs, in re, 306.
Dennison, Kentucky v., 264.
Devine v. Holloway, 104.
Dillv. Murphy, 114.
Dodge V. Woolsey, 83.
Donohue, Hanley v., 152, 153.
Dover, Council of,- ex p. County

Council of Kent v., 242.
Dow V. Black, 189.
Doyle 17. Falconer, 114.
Dunning, State of Indiana v;, 219.
Dupuy, Gushing v. , 147, 248, 249, 255.

E. C. Knight Coy. United States v.
(The Case of the Sugar Trust),
198.

Elliot, Connor v., 296.

Ellis V. McHenry, 4.

Ellis, Ashbury r., 8.

Escanaba Co. v. Chicago, 205.

Evershead, L. and N.W.R. v., 185.

Extended Hustlers' Freehold Com-
pany V. Moore, &c. , 257.

Eyre, Phillips v., 77, 86.

Falconer, Doyle v., 114.

Farmers' Trust, The, Pollock v. (The
Income Tax Case), 184.

Farnell v. Bowman, 265, 266.

Fergie, Alcock v., 277.

Fielding v. Thomas, 87, 132.

Fisher, American Publishing Com-
pany v., 313.

Fort Leavenworth v. Lowe, 72.

Freeman, Chy Lung v., 302, 306.

Frith V. Reg., 262.

Gagnon, Prince v., 249.

Georgia, State of, v. Stanton, 260, 269.

Georgia, State of, Cherokee Nation
v., 260, 269.

Georgia, State of, Chisholm v., 258,
266, 267.

Georgia, State of. South Carolina v.y
264.

Gibbons v. Ogden, 197, 198, 302, 303.

Glass, Speaker of Legislative Assembly
of Victoria v., 114.

Gloucester Ferry Company v. Penn-
sylvania, 299.

Glover, Huse v. , 205.

Godfrey v. Terry, 258.

Goreley, Butler v., 174.

Governor and Government of New
Zealand, Sloman v., 73, 262.

G.W.R. V. Sutton, 185.

G.W.R., Parker v., 185.

Hall, Campbell v., 261.

Hamilton v. Vicksburg Ry. Co., 205.

Hanley v. Donohue, 1 52, 153.

Hans V. Louisiana, 264, 267.

Happersett, Minor v. , 297.

Hardin, Leisy v., 203, 290, 305.

Harding, Commissioners of Stamps v.,
6.

Henderson v. New York, 306.

Hill V. Bigge, 94.

Hodge V. Reg., 77, 86, 130.

Holloway, Devine v. , 104.

Holmes i;. Eeg., 262.

Homeward Bound G.M. Company v.
Macpherson, 152.

Houseman, Claflin v., 69, 274.

Houston V. Moore, 173, 272.

Huntington v. Attrill, 153.

LIST OF CASES REFERRED TO.

Huse V. Glover, 205.

Husen, Railroad Company v., 302,

305.
Hutchinson, Palmer v., 262.
Income Tax Case, The (Pollock ?•.

The Farmers' Trust), 184.
Indiana, State of, v. Dunning, 219.
Inter-State Commerce Commission,

The, V. Baltimore and Ohio Railway

Company, 185.
Johnston v. St. Andrew's Church,

248.
Jones, United States v., 285.
Judges of the Court of Registration

(Massachusetts), Tyler v., 237.
Kempton Park Racecourse Company,

Powell y., 238.
Kendall v. United Stages, 215.
Kent, ex p. County Council of, v.

Council of Dover, 242.
Kentucky v. Dennison, 264.
Kentucky, Patterson v. , 302.
Kielley v. Carson, 114.
Kimball, County of Mobile v., 204.
Kwok-a-Sing, Attorney-General for

Hong Kong v. , 86.
Kyte, Cameron v., 94.
Lambe, Bank of Toronto v., 70, 183,

186.
Lathrop, United States v., 272.
Legal Tender Cases, The, 149.
Leisy v. Hardin, 203, 290, 805.
Lemmon v. The People, 296.
Licence Cases, The, 301, 302.
Lings, Chorltonv., 110, HI.
Liquor Prohibition Case, The (A:-G.

for Ontario v. A. -G. for the Dominion

and the Distillers' and Brewers'

Association of Ontario), 133, 139,

174, 306.
L. and N.W.R. v. Evershead, 185.
Loughborough v. Blake, 313.
Louisiana, Hans v., 264. 267.
Louisiana v. Texas, 264.
Low i\ Routledge, 8.
Lowe, Fort Leavenworth v., 72.
Lowrey, Chemung Canal Bank v.,

296.
L'Union St. Jacques de Montreal v.

Belisle, 132, 147.
Luxton V. North River Bridge Com-
pany, 157.
Macleod v. Attorney-General for New

South Wales, 8, 166.
Macpherson, Homeward Bound G.M.

Company v. , 152.
McCaskill, Commercial Bank v., 257.
McClung, Blake v., 295, 296, 297.
McCluny v. Silliman, 269, 274.
McCready v. Virginia, 295.

M'CuUoch V. State of Maryland, 135,
137, 183, 186, 298, 332.

McHenry, Ellis v., 4.

Madison, Marbury v., 270, 274.

Manistee Improvement Co., Sands v.,
205.

Marbury v. Madison, 270. 274.

Maritime Bank v. Reg., 168.

Maritime Bank of Canada v. New
Brunswick Receiver General, 74,
287.

Maryland, Ward v. , 297.

Maryland, State of, M'Culloch v.,
135, 137, 183, 186, 298, 332.

Massachusetts, Commonwealth of, v.
Alger, 302.

Massachusetts, Commonwealth of, v.
Clary, 7.

Mayor of Baltimore, Barron v., 202.

Mayor of New York v. Miln, 301.

Mercer, Attornej^-General for Ontario
v., 74, 239, 269.

Miln, Mayor of New York v., 301.

Minor v. Happersett, 297.

Mobile, County of, v. Kimball, 204.

Mon,k V. Ouimet, 74.

Moore, etc., Extended Hustlers*
Freehold Company v., 257.

Moore, Houston v., 173, 272.

Mormon Church v. United States,
313.

Morrison, New Zealand Loan and
M.A. Company, Ltd. v., 4.

Murphy, Dill v., 114.

Musgrove, Bickford, Smith and Com-
pany v., 176.

Musgrove, Toy v., 216, 229.

Neagle, m re, 161, 213, 306.

New Brl^nswick Receiver General,
Maritime Bank of Canada v., 74,
287.

New York, Mayor of, v. Miln, 301.

New York, Henderson v. , 306.

New Zealand, Governor and Govern-
ment of, Sloman v. , 73, 262.

New Zealand Loan and Mercantile
Agency Company, Ltd. v. Morrison,
4.

North River Bridge Company, Luxton
v., 157.

Ogden, Gibbons v., 197, 198, 302, 303.

Oriental Bank Corporation, in re,
ex p. The Crown, 74, 262.

Ouimet, Monk v. , 74.

Palmer i\ Hutchinson, 262.

Pardoning Power Case, The (Attorney-
General for Canada v. Attorney-
General for Ontario), 219.

Parker v. G.\Y.R., 185.

Parlement Beige, The, 261.

XIV

LIST OF CASES REFERRED TO.

Parsons, Citizens' Insurance Company
of Canada?'., 137.

Passenger Cases, The, 199, 306.

Patterson v. Kentucky, 302.

Pearson v. Russell, 257.

Pelican Insurance Company, Wis-
consin v., 152, 153, 264, 273.

Penn v. Baltimore, 263.

Pennsylvania, Commonwealth of, v.
Standard Oil Company, 299.

Pennsylvania, Commonwealth of,
Gloucester Ferry Company v. , 299.

Pennsylvania, Commonwealth of,
Pullman's Car Company v., 299.

People, The, Lemmon v., 296.

Phillips V. Eyre, 77, 86.

Pollock V. The Farmers' Trust (The
Income Tax Case), 184.

Port of Philadelphia, Board of
Wardens of, Cooley v., 199.

Powell V. Apollo Candle Company,
77, 130, 177, 179.

Powell V. Kempton Park Racecourse
Company, 238.

Prince v. Gagnon, 249.

Pullman's Car Company v. Penn-
sylvania, 299.

Rahrer, in re, 137, 174, 203.

Railroad Company v. Husen, 302, 305.

Railway Company (Chicago), Bowman
v., 203, 305.

Receiver General of New Brunswick,
Maritime Bank of Canada v., 74,
287.

Reese, United States v., 167.

Reg. V. Burah, 9, 77, 86, 129, 130.

Reg. V. Riel, 129.

Reg. V. WQson, 261.

Reg , Blackwood v., 299.

Reg., Frith v., 262.

Reg., Hodge i;., 77,86, 130.

Reg., Holmes v., 262.

Reg., Maritime Bank v., 168.

Reg., Russell ?7., 138.

Reg., St. Catherine's Milling and
Lumber Company v., 72, 74, 240,
269.

Reg., Stevenson v., 277.

Reg., Tobin v., 265.

Reynolds, United States v., 308.

Riel, Reg. v., 129.

Robbins v. Shelby County Taxing
District, 200, 203.

Roberts, Bradfield v., 308.

Robertson v. Crease, 258.

Rolfe, ex p., 257.

Routledge, Low v., 8.

Russell V. Reg. , 138.

Russell, Alliance Contracting Com-
pany v., 257.

Russell, Pearson v., 277.

Rutland, etc., Railway Company,

Thorpe v. .302.
St. Andrew's Church, Johnston v., 248.
St. Catherine's Milling and Lumber

Company v. Reg., 72, 74, 240, 269.
Sandhurst, Beresford-Hope ??., 110. J
Sands v. Manistee Improvement Co., 1

205. •

Shelby County Taxing District,

Robbins v., 200, 203.
Sherlock, Ailing v., 304.
Silliman, McCluny v., 269, 274.
Slaughter House Cases, The, 182, 294,

303, 325.
Sloman v. Governor and Government

of New Zealand, 173, 262.
South Carolina v. Georgia, 264.
Speaker of Legislative Assembly of

Victoria tJ. Glass, 114.
Spickler, in re, 137.
Spiller V. Turner, 300.
Sprigg, Cook v., 261.
Stamps, Commissioners of, v. Harding,

6.
Standard Oil Company, Common-
wealth of Pennsylvania v., 299.
Stanton, State of Georgia ?;. , 260, 269.
State Tax on Foreign Held Bonds,

Case of the, 299.
State of Georgia v. Stanton, 260, 269.
State of Indiana v. Dunning, 219.
State of Kentucky v. Dennison, 264.
State of South Carolina v. (xeorgia,

264.
State of Tennessee v. Davis, 271.
State of Texas v. White, 283.
State of Wisconsin v. Pelican Insur-
ance Company, 152, 153, 264, 273.
State of Georgia, Cherokee Nation v.,

260, 269.
State of Georgia, Chisholm v., 258,

266, 267.
State of Georgia, State of South

Carolina v. , 264.
State of Kentucky, Patterson v. , 302.
State of Louisiana, Hans v., 264, 267.
State of Maryland, M'CuUoch v.,

135, 137, 183, 186, 298, 332.
State of Maryland, Ward v., 297.
State of Virginia, Cohens v., 69, 163,

271, 274.
State of Virginia, McCready v., 295.
Stevenson v. Reg., 277.
Stewart, Cooper v. , 2.
Stockton V. Baltimore and New York

Railroad Company, 157.
Sugar Trust, The Case of the (United

States V. E. C. Knight Company),

198.

LIST OF CASES REFERRED TO.

Sutton, G.W.R. v., 185.

Tarble's Case, 272.

Taylor, Barton v., 114, 161, 254.

Telfair, Cooper v. , 85.

Tennant v. Union Bank of Canada, 145.

Tennessee v. Davis, 271.

Terry, Godfrey v., 258.

Texas, State of, Louisiana v., 264.

Texas, State of, v. White, 283.

Thomas, Fielding v., 87, 132.

Thompson v. Whitman, 153.

Thorpe v. Rutland, etc.. Railway
Company, 302.

Tobin V. Reg., 265.

Toy V. Musgrove, 216, 229.

Trade Mark Cases, The, 167.

Turner, Spillerv., 300.

Tyler v. Judges of the Court of Regis-
tration (Massachusetts), 237.

Union Bank of Canada, Tennant v.,
145.

United States v. Cornell, 71.

United States v. E. C. Knight Com-
pany (Case of the Sugar Trust), 198,

United States v. Jones, 285.

United States v. Lathrop, 272.

United States v. Reese, 167.

United States v. Reynolds, 308.

United States, Buckwalter v., 272.

United States, Kendall v., 215.

United States, Mormon Church ?;.,313.

Vicksburg Ry. Co. , Hamilton ?'. , 205.

Virginia, Cohens v., 69, 163, 271, 274.

Virginia, McCready v. , 295.

Walker v. Baird, 261.

Ward V. Maryland, 297-

Wellman, Chicago and Grand Trunk
Railway Company v. , 238.

White, State of Texas v. , 283.

Whitman, Thompson v. , 153.

Wiggins Ferry Company, Chicago and
Alton Railroad v., 152.

Wilson, Reg. v., 261.

Wingo, Cumings v., 296.

Wisconsin v. Pelican Insurance Com-
pany, 152, 153, 264, 273.

Woolsey, Dodge v. , 83.

LIST OF STATUTES CITED.

5 Geo. iii. c. 12. (The Stamp Act,

1765), 3.
12 Geo. iii. c. 7. (Tea Duty, 1770), 3.
22 Geo. iii. c. 75. (The Colonial Leave

of Absence Act, 1782), 278.
27 Geo. iii. c. 2. (The N. S. W. Criminal

Courts Act, 1787), 12.
4 Geo. iv. c. 96. (The Charter of

Justice, KS.W.,1823),4, 12, 13,251.

— sec. 29. 235.

— sec. 44. 14.

9 Geo. iv. c. 83. (The Australian
Courts Act, 1828), 12, 13, 129, 256,
257.

— sec. 22. 235.

— sec. 24. 12.

10 Geo. iv. c. 22. (The Government
of W.A. Act, 1829), 17.

3 and 4 Will. iv. c. 41, sec. 4. (The
Judicial Committee Act, 1833), 241,
260.

4 and 5 Will. c. 95. (The Government
of South Australia Act, 1834), 16.

1 and 2 Vict. c. 60. (The Government
of South Australia Act, 1838), 16.

5 and 6 Vict. c. 61. (The South
Australia Act, 1842), 16. (The
N.S. Wales Act, 1842), 19.

— c. 76. (The Australian Constitu-
tions Act, 1842), 13, 129.

— sec. 51. 15, 315.

— sec. 52. 15.

— sec. 53. 14.

6 and 7 Vict. c. 22. (The [Colonies]
Evidence Act, 1843), 7.

— c. 34. (The Fugitive Offenders
Act, 1843), 144, 150.

7 and 8 Vict. c. 69. (The Judicial
Committee Act, 1844), 256, 257.

8 Vict. c. 20. (The Railways Clauses
Act, 1845), 184.

10 and 11 Vict. c. 83. (The Aliens
Act, 1847), 10.

10 and 11 Vict. c. 95. (The Colonial

Copyright Act, 1847), 4.
13 and 14 Vict. c. 59. (The Australian

Constitutions Act, 1850), 10, 13, 14,

17, 129.

— sec. 1. 15.

— sec. 9. 17.

— sec. 12. 96.

— sec. 30. 315.

— sec. 34. 15, 315.

— sec. 35. 15.

15 and 16 Vict. c. 72. (The New
Zealand Constitution Act, 1852),
279.

16 and 17 Vict. c. 48. (The Coinage
Act [Colonial Offences], 1853), 4.

— c. 118. (The Apprehension of
Offenders Act, 1853), 150.

17 and 18 Vict. c. 31. (The Railway
and Canal Traffic Act, 1854), 184.

18 and 19 Vict. c. 54. (The New
South Wales Constitution Act,
1855), 15, 114, 315.

— sees. 5, 6, and 7. 315.

— sec. 35. 114.

— c. 55. (The Victoria Constitution
Act, 1855), 15, 114.

— 40. 309.

20 and 21 Vict. c. 39. (The Colonial
Attorneys Relief Act, 1857), 3.

22 Vict. c. 20. (The Evidence by
Commission Act, 1859), 151.

22 and 23 Vict. c. 63. (The British
Law Ascertainment Act, 1859), 151.

23 and 24 Vict. c. 122. (The Admiralty
Offences [Colonial] Act, 1860), 8.

24 and 25 Vict. c. 44. (The Australian
Colonies Act, 1861), 16, 256.

— sees. 2, 5, and 6. 315.

— c. 114. (The Wills Act, 1861),
sees. 1 and 2. 3.

25 and 26 Vict. c. 1 1. (The Australian
Constitutions Act, 1862), 14.

LIST OF STATUTES CITED.

xvii

26 Vict. c. 24. (The Vice- Admiralty-
Courts Act, 1863), 289.

28 and 29 Vict. c. 63. (The Colonial
Naval Defence Act, 1865), 8, 10,
142.

— c. 14. (The Colonial Laws Validity
Act, 1865), 6, 11, 167, 168, 170, 171,
175, 178.

— sec. 2. 6, 173, 175.

— sec. 3. 10.

— sec. 5. 9, 96, 130.

— sec. 6. 176.

— c, 64. (The Colonial Marriages
Act, 1865), 8.

29 and 30 Vict. c. 109. (The Naval
Discipline Act, 1866), 142.

SO and 31 Vict. c. 3. (The British
North America Act, 1867), 74, 86,
131, 137, 139, 167, 169, 170, 174,
181, 188, 197, 286, 316.

— sec. 9. 219.

— sec. 17. 92.

— sec. 18. 114.

— sec. 55. 95, 96.

— sec. 91. 132, 145, 146.

— sec. 101. 233.

— sec. 125. 186.

30 and 31 Vict. c. 45. (The Vice-
Admiralty Courts Act Amendment
Act, 1867), 289.

— c. 102. (The Representation of
the People Act, 1867), 110.

32 Vict. c. 10. (The Colonial Prisoners
Removal Act, 1869), sec. 4. 5, 8.

33 Vict. c. 14. (The Naturalization
Act, 1870), sec. 16. 10.

33 and 34 Vict. c. 52. (The Extradi-
tion Act, 1870).

— sec. 18. 4, 5.

36 Vict. c. 22. (The Australasian
Colonies Duties Act, 1873), 10, 26.

36 and 37 Vict. c. 60. (The Extradi-
tion Act, 1873), 261.

— c. 66. (The Judicature Act, 1873),
sec. 100. 260.

38 and 39 Vict. c. 38. (The Parlia-
ment of Canada Act, 1875), 114.

40 and 41 Vict. c. 23. (The Colonial
Fortifications Act, 1877), 142.

44 and 45 Vict. c. 58. (The Army
Act, 1881), sees. 175-7, 10, 142.

— c. 69. (The Fugitive Offenders
Act, 1881), 150.

— sec. 32. 5.

45 and 46 Vict. c. 76. (The Merchant
Shipping [Colonial Inquiries] Act,
1882), sec. 6. 252.

— c. 50. (The Municipal Corporations
Act, 1882), sec. 16. 110.

— sec. 63. 110.

40 and 47 Vict. c. 52. (The Bank-
ruptcy Act, 1883), sec. 118. 151.

46 and 47 Vict. c. 57. (The Patents
Designs and Trade Marks Act,
1883), sec. 104. 4.

47 and 48 Vict. c. 24. (The Colonial
Attorneys Relief Act Amendment
Act, 1884), 3.

47 and 48 Vict. c. 31. (The Colonial
Prisoners Removal Act, 1884), sec.
12. 5.

47 and 48 Vict. c. 39. (The Naval
Discipline Act, 1884), 142.

48 and 49 Vict. c. 60. (The Federal
Council of Australasia Act, 1885),
14, 33, 63, 144, 150, 159.

— sec. 15. 158.

— sec. 20. 134.
gee. 24. 37.

49 and 50 Vict. c. 33. (The Inter-
national Copyright Act. 1886), 147,
261.

— sec. 8 (s, sec. 3). 4, 5, 147.

51 and 52 Vict. c. 25. (The Railway
and Canal Traffic Act, 1888), 206.

— c. 32. The Imperial Defence Act,
1888), 39, 142.

— c. 41. (The Local Government
Act, 1888), 110.

— sec. 39. 242.

52 and 53 Vict. c. 63. (The Inter-
pretation Act, 1889), 110.

— sec. 18 (3). 292.

— sec. 18 (7). 292.

— sec. 38. 175.

53 and 54 Vict. c. 27. (The Colonial
Courts of Admiralty Act, 1890),
4, 10, 251, 273, 289.

— sec. 2. 273.

— sec. 3. 11, 273.

— c. 26. (The West Australian
Constitution Act, 1890), 18.

— sec. 6. 315.

55 and 56 Vict. c. 6. (The Colonial

Probates Act, 1892), 3.
57 and 58 Vict. c. 30. (The Finance

Act, 1894), 3.

57 and 58 Vict. c. 60. (The Merchant
Shipping Act, 1894), sec. 264. 5.

— sees. 366 and 367. 11.

— sec. 478. 8, 252.

— sees. 670-5. 5.

— sec. 735. 4.

— sec. 736. 8.

58 Vict. c. 3. (The Australian
Colonies Duties Act, 1895), 10.

58 and 59 Vict. c. 34. (The Colonial
Boundaries Act, 1 895) , 9, 63, 292, 31 5.

— c. 44. (The Judicial Committee
Amendment Act, 1895), 245.

XVlll

LIST OF STATUTES CITED.

New South Wales.

61 Vict. No. 11. (The Constitution

Act), 13, 114.
57 Vict. No. 5. (The Criminal Law

and Evidence Amendment Act,

1891), sec. 11. 151.
56 Vict. No. 38. (The Parliamentary

Electorates and Elections Act,

1893), 107.
59 Vict. No. 15. (The Land and

Income Tax Assessment Act, 1895),

300.
Vict. Act No. 30. (The Claims

against the Government and Crown

Suits Act, 1897), 265.

New Zealand.

21 and 22 Vict. No. 22. (The Supreme
Court Judges Act, 1858), 280.

Queensland.

29 Vict. No. 23. (The Claims against

the Government Act, 1866), 265.
31 Vict. No. 38. (The Constitution

Act, 1867), sec. 24. 256.
— (The Elections Acts, 1885-1897),

107.
54 Vict. No. 10. (The Dividend Duty

Act, 1890), 300.
57 Vict. No. 4. (The Railway Border

Tax Act, 1893), 58.
62 Vict. No. 15. (The Evidence Act,

1898), 151.

South Australia.

7 Will. iv. No. 5. (The Supreme

Court Act), 251.
1853 No. 6. (The Claims against the

Government Act, 1853), 265.
1855-6 No. 2. (The Constitution Act,

1855-6), 16, 120.
— sec. 35. 114.
24 and 25 Vict. No. 5. (The Court

of Appeals Acts Amendment Act),

251.
(44 and 45 Vict. ) No. 236. (The Con-
stitution Act Further Amendment

Act, 1881), 126.
(59 and 60 Vict.) No. 667. (The

Electoral Code, 1896), 107. |

Tasmania.

18 Vict. No. 17. (The Constitutional

Act), 14.
55 Vict. No. 24. (The Crown Redress

Act, 1891), 265.
60 Vict. No. 49. (The EUectoral Act,

1896), 107.
60 Vict. No. 54. (The Constitution

Amendment Act, 1896, No. 2),

107.
63 Vict. No. 7. (The Electoral Con-

tinuation and Amendment Act,

1899), 107.

Victoria.

54 Vict. No. 1075. (The Constitu-
tion Act Amendment Act, 1890),
107.

54 Vict. No. 1080. (The Crown
Remedies and Liability Act, 1890),
265.

54 Vict. No. 1142. (The Supreme
Court Act, 1890), sec. 231. 257.

58 Vict. No. 1374. (The Income Tax
Act, 1895), 297.

— sec. 8 (s. sec. 2). 298.

60 Vict. No. 1467. (The Income Tax
Act, 1896), sec. 19 (s. sec. 1).
300.

62 Vict. No. 1554. (The Evidence
Act, 1898), 151.

63 Vict. No. 1606. (The Constitution
Act Amendment Act, 1899), 107.

Western Australia.

33 Vict. No. 13. (Ordinance estab-
lishing Legislative Council, 1870),
17.

24 Vict. No. 15. (Privy Council
Appeals), sec. 29. 251.

62 Vict. No. 9. (The Crown Suits
Act, 1898), 265.

63 Vict. No. 19. (The Constitution
Acts Amendment Act, 1899), 107.

— (The Constitution Act Amendment
Act, 1900), 107.

Federal Council.

49 Vict. No. 2. (The Federal Council
Evidence Act, 1886), 151.

LI8T OF STATUTES CITED.

49 Vict. No. 3. (Tlie Australasian
Civil Process Act, 1886), 151.

49 Vict. No. 4. (The Australasian
Judgments Act, 1886), 151.

51 Vict. No. 1. (The Queensland
Pearl Shell and Beche-de-mer Fish-
eries [Extra-Territorial] Act of
1888), 143. ■

52 Vict. No. 1. (The Western
Australian Pearl Shell and Beche-
de-mer Fisheries [Extra-Territorial]
Act of 1889), 143.

60 Vict. No. 2. (The Australasian
Testamentary Process Act, 1897),
151.

Canada.

38 Vict. c. 11. (The Supreme and

Exchequer Court Act, 1875), 241.
49 Vict. c. 106. (The Dominion

Temperance Act, 1886), 174.
53 Vict. c. 56. (Ontario), (The Liquor

Licence Act, 1890), 174.
54 and 55 Vict. c. 25. (The Supreme and

Exchequer Courts Act, 1891), 241.

United States of America.

The Inter- State Commerce Act, 1887,
184, 206.

PEINCIPAL WORKS REFERRED TO.

Anson — " Law and Custom of the Constitution " (1892).
Baker — "Annotated Constitution of the United States" (1891).
Blackmore — "The Law of the Constitution of South Australia"

(1894).
Brtce — " The American Commonwealth " (1 888).
Burgess — " Political Science and Constitutional Law " (1891).
CooLEY — " Constitutional Limitations " (fifth edition, except where

sixth is mentioned).
CooLET — "Principles of Constitutional Law" (1898).
Dicey—" Law of the Constitution " (1897).
Hare — "American Constitutional Law" (1889).
Hearn — "Government of England" (second edition, 1886).
Jenks- -" Government of Victoria " (1891).
Jenes — " History of the Australasian Colonies" (1896).
Lefroy — " Legislative Power in Canada."
Lewis — "Government of Dependencies" (Clarendon Press edition,

1891).
Lowell — "Government and Parties in Continental Europe" (1896).
Morris — " Memoir of George Higinbotham " (1895).
MuNROE — " Constitution of Canada " (1889).

Quick and Garran — "Annotated Constitution of the Australian
Commonwealth" (1900)

Story — "Commentaries on the Constitution of the United States"

(second edition, 1851).
Thayer — " Cases on Constitutional Law " (1895).

Todd — " Parliamentary Government in the British Colonies " (second
edition, 1894).

Official Eeports of the Debates in the Australasian National Con-
vention (Sydney, 1891), the Australasian Federal Convention
(Adelaide and Sydney, 1897, Melbourne, 1898).

CHAPTER I.

THE SOURCES OF THE LAWS AND INSTI-
TUTIONS OF THE COLONIES.i

jyjULTiPLiciTY OF SOURCES. — One of the many useful
services already performed by the Society of Comparative
Legislation has been the collection and publication in their
Journal of " Modes of Legislation in the British Empire."
The returns which have been made to the circular of the
Society exhibit one feature which is bound to strike an
English lawyer as remarkable. Accustomed to a legal
system whose feature is its unity, he is struck by the
multiplicity of the sources of laws and institutions in the
Colonial system ; and in place of singleness of authority he
finds not a little doubt and conflict. The Common Law,
the Prerogative, Acts of Parliament and Orders thereunder,
play their part as in England. But the Prerogative looms
larger in Colonial than in Home institutions; Acts of
Parliament have varying force and authority according to
their date and their nature ; Orders in Council are less
frequently acts of supplementary legislation than the exer-
cise of a statutory suspending power or power to put into
operation. In addition to these are the Acts and Ordinances
of Colonial Legislatures, sometimes of Legislatures between
which the power of legislation is divided, sometimes of
Legislatures which have been superseded by others.

^Reprinted from the Joumod of Comparative Legislation, New Series,
No. v., August 1900.

2 SOURCES OF THE LAWS. v

THE AUSTRALIAN COLONIES : COMMON SOURCES OF
THE LAW.

1. Laws of England. — All the Australian Colonies
belong to the class of colonies acquired by settlement or
occupancy. The doubts once held as to the status of New
South Wales as a penal settlement (see Bentham, Worhs^
vol. iv.) must now be regarded as set at rest by the
decision of the Privy Council in Cooper v. Stewart} The
sources of the law common to all these colonies are the
following :

The laws of England at the time of the settlement (or
some date fixed by statute in lieu thereof) so far as they
are applicable to the conditions of an infant colony. " It
hath been held that if an uninhabited country be dis-
covered and planted by English subjects, all the English
laws then in being which are the birthright of every
English subject are immediately in force (Salkeld, 411, QQQ).
But this must be understood with very many and very
great restrictions. Such colonists carry with them only
so much of the English Law as is applicable to their
own situation and the condition of an infant colony." ^

The " Laws of England " include the Statute Law as
well as the Common Law; the law so imported is what
is sometimes called the Common Law of the colony. The
applicability of any law according to the principle laid
down is mainly a question for judicial determination, but-
this class of laws falls completely within the power of
the Colonial Legislature, which may declare what laws
are in force and may repeal any of them.

2. Acts of Parliament made Applicable. — Acts of
Parliament Tnade applicable to the colony either in
common with other dominions of the Crown or specially,
whether by express words or necessary intendment — these
Acts are of paramount obligation. The expression
TTiade applicable to the colony requires some explanation.
In the first place it excludes those Acts of Parliament-

M1889) 14 App. Cas. 286. ^Biackstone, Com., i. 107.

ACTS OF PARLIAMENT MADE APPLICABLE. 3

which, being part of the general law of England appli-
cable to the circumstances of the colony, are received at
its settlement as part of its common law ; and it includes
all Acts by which Parliament intends to bind the colonies?
whether these Acts were passed before or after the settle-
ment of the colony.^ In the second place, an Act of the
Imperial Parliament may relate to a colony without being
in force there, just as it may relate to a foreign country.
An Imperial Act may relate or refer to persons, to things
situated, to acts done, or to events happening in a
colony or foreign country; but the enforcement of the
regulation established by the Act may belong to the
English Courts alone, and be limited by the powers , of
those Courts to make their orders effective. The colonies,
through their inhabitants and in other ways, receive by
many statutes certain favourable treatment in England
and in English Courts, either absolutely or upon terms
of reciprocity, e.g. by the Colonial Attorneys Relief Act,
1857, and the Amendment Act, 1884, the Colonial Probates
Act, 1892, and the Finance Act, 1894. These and the
like Acts are very commonly regarded as "in operation
in the colony " ; they are in fact " in operation in England
in respect to the colony." The importance of this distinc-
tion is obvious, but it was ignored by those who compared
the financial proposals of the Chancellor of the Exchequer
in 1894 with the Stamp Act of 1765 and the Tea Duty
of 1770. Again, the Wills Act, 1861, §§ 1 and 2, affects
wills made in the colonies and wills of persons domiciled
in the colonies, but only for the purpose of admitting
them to probate in England or Ireland, and in Scotland
to confirmation. The Bankruptcy Acts and the Companies
Acts illustrate the two different kinds of operation. The
Bankruptcy Acts vest in the trustee the debtor's property
everywhere in such a way that the trustee's title is en-
forceable in all parts of the British Dominions, and a
discharge in bankruptcy in England is a discharge in a
paramount jurisdiction, recognized and enjoyed in all
^ See Lewis, Government of Dependencies, p. 201.

4 SOURCES OF THE LA WS

parts of the British Dominions.^ On the other hand, in
the winding up of a company in England, while the
English Court will treat its orders as affecting all
colonial property of the debtor, and as binding all his
colonial creditors, the operation of these orders is limited
by the power of the English Court to give effect to
them, and any recognition they may obtain in the
colonies is due, not to any paramount jurisdiction, but
to the " comity of nations." ^

The general rule that Acts made applicable to a colony
cannot be repealed or varied save by the Imperial Parlia-
ment is occasionally excluded by a provision giving special
power to the Colonial Legislature to enact as if the Act
had not been passed and to alter or vary it, e.g. Coinage
Act, 1853, or to repeal the Act or some part of it as the
provisions of the Merchant Shipping Act, 1894, relating to
ships registered in the possession (§ 735).

3. Statutory Orders and Regulations. — Orders or
Regulations made by the Crown in pursuance of Acts of
the Imperial Parliament to which they are equal in
authority. These Orders

(a) Put an Act into operation in a colony, the Act being
in terms postponed in the case of such colony until an Order
is made. This is the commonest case, and many illustrations
might be given, e.g. Colonial Courts of Admiralty Act, 1890,
in the case of four colonies scheduled.

(6) Suspend the Act or a portion of it, or apply it with
modifications in the case of a colony, generally on the
ground that the Legislature of the Colony has made suitable
provision for carrying out the purposes of the Act, e.g. the
Extradition Act, 1870, § 18 ; Coinage Act, 1853 ; Colonial
Copyright Act, 1847 ; International Copyright Act, 1886,
§ 8, sub. § 3 ; Patents, Designs, Trademarks Act, 1883, § 104.

(c) Supplement the Act, e.g. The Charters of Justice of
New South Wales, 1823, and Tasmania, 1831.

V. M'Henry, L.R. 6, C.P. 228.
^New Zealand Loan and Mercantile Agency Co., Ltd., v. Morrison y
L.R.1898, A.C. 349.

PREROGATIVE ORDERS. 5

{d) Bring new subjects within the scope of the Act, as
where the operation of the Act depends upon treaties, e.g.
The ExtraditionAct, 1870, and the International Copyright
Act, 1886.

(e) Give to a colonial law the force of law throughout the
British Dominions, e.g. Colonial Prisoners Removal Act,
1884, § 12; The Fugitive Offenders Act, 1881, § 32;
Merchant Shipping Act, 1894, § 264 (application of Part II.
by Colonial Legislatures).

The Orders in Council under the Colonial Prisoners
Removal Act, 1869, § 4, and the Merchant Shipping Act,
1894, §§ 670-675 (Colonial Lighthouses, etc.) are made upon
an address of the Colonial Legislature.

4. Prerogative Orders, Charters, Letters Patent. —
Prerogative Orders, including Charters and Letters Patent,
are not of the same importance in a settled as in a conquered
colony, for as constitutions come to rest more and more on
statute, the Prerogative recedes. Its most important exercise
is in the grant of constitutions, the establishment of
executive authority, the appointment of governors and
the definition of their powers, and the setting up of
courts of justice. Most of these things in Australia,
however, are done by the Crown under statutory
authority, and so fall into the last class. The Orders in
Council relating to Colonial Currency are a conspicuous
case of Prerogative Orders in operation in the colonies.

The Orders in force in 1890 are contained in the collection
published " by authority " under the title " Statutory Rules
and Orders Revised." The Prerogative Orders are contained
in an appendix in volume viii. Later Orders are in subse-
quent volumes published annually.

5. Laws and Ordinances of Colonial Legislatures. —
Laws and Ordinances made by the Legislature of the Colony,
meaning thereby the authority other than the Imperial
Parliament or the Crown in Council competent to make
laws for the colony. There may be more than one such
authority. Some colonies have been formed by separation
from others, and inherit the laws enacted by the Legislature

6 SOURCES OF THE LAWS.

of the mother colony before the separation. Such laws, so
far as they apply within her borders, the daughter colony
may repeal. In other cases, there may be legislatures with
exclusive powers over different subjects or with concurrent
powers, but so related that in case of conflict the enactment
of the one shall prevail over the enactment of the other. Both
these conditions are true of the Dominion of Canada and
were true of those colonies of Australasia constituting the
Federal Council of Australasia. Generally, these powers
are exclusive; but where the same matter is within the
power of both the central and the local legislature, the
enactment of the central legislature prevails. Each
authority retains control over its own laws, and may
alone alter or repeal them.

Amongst " Laws and Ordinances made by the Legislature
of the Colony " are included many Acts of the Imperial
Parliament which have been adopted for the colony by the
local legislature. They form part of the ordinary legisla-
tion of the colony, and are to be distinguished from other
local laws merely by a rule that where a statute has before
its adoption by the colony received an authoritative judicial
construction in England, that construction is deemed bind-
ing in the colonies.^

The powers of Colonial Legislatures are defined by the
Colonial Laws Validity Act, 1865 (28 and 29 Vict., c. 63).
They have power generally to make laws for the peace,
welfare, and good government of the colony. Special
powers of legislation have been conferred by the Imperial
Parliament by many Acts on various grounds, of which the
following may serve as examples :

(a) The general power to make laws has always been
limited by a condition that such laws should not be
"repugnant to the laws of England." This condition has
received widely different interpretations, and the view
which has ultimately prevailed has been embodied in the
> Colonial Laws Validity Act, providing that :

^See Harding v. Commissioner of Stamps for Queendand, L.R. [1898],
A.C. 769.

REPUGNANCY TO IMPERIAL LAW. 7

§ 2. Any colonial law which is or shall be in any
respect repugnant to the provisions of any Act of Parliament
extending to the colony to which such law may relate, or
repugnant to any order or regulation made under authority
of such Act of Parliament, or having in the colony the force
and effect of such Act, shall be read subject to such Act,
order, or regulation, and shall, to the extent of such
repugnancy, but not otherwise, be and remain absolutely
void and inoperative.

§ 3. No colonial law shall be or be deemed to have been
void or inoperative on the ground of repugnancy to the law
of England unless the same shall be repugnant to the
provisions of some such Act, order, or regulation, as
aforesaid.

But under the influence of narrower interpretations. Acts
of Parliament had been from time to time passed to enable
the Colonial Legislatures to make laws on specific subjects,
e.g. 6 and 7 Vict., c. 22, empowering Colonial Legislatures to
make laws for receiving the evidence of barbarous and un-
civilized persons. These Acts, although the occasion for
them has gone, are generally still in force.

(6) Colonial Legislatures are " local and territorial legis-
latures," an expression used to denote that their power is
different in kind from that of the Imperial Parliament.
For while the Imperial Parliament, like the organs of
every Sovereign State, is limited territorially by its power
through the executive and the courts to give effect to
laws, it can constrain every person and every authority
within its borders to treat its enactments as valid ; and
the rule against the extra-territorial operation of statutes
is a rule of interpretation merely, over-ruled by any clear
indication of the intention of Parliament to apply an Act
to persons or things outside of the British Dominions.
The territorial limitation on a Colonial Legislature, how-
ever, is more than a rule of interpretation; it is a rule
in restraint of power, sanctioned not merely by the refusal
of foreign courts to recognize rights acquired or acts done
under it, but by the refusal of the courts of the colony itself

8 SOURCES OP THE LAWS.

to treat the enactment as valid. This is the general but
not the universal opinion as to the nature of the powers
of a Colonial Legislature.^ Many of the cases relied on
for the opinion in question are unsatisfactory in that they
are decisions, not of courts of the colony whose power is
in question, but of an English court or the court of
another colony asked to recognize and give effect to the
law on grounds of comity. And adopting the opinion
in question, we find no certain test of what is " legislation
for the colony." 2 The narrow view by which Parliament
has sometimes been moved as to the powers of Colonial
Legislatures is manifested by the Acts passed from time
to time to enlarge their powers in special cases, e.g. 23 and
24 Vict., c. 122, enables Colonial Legislatures to enact that
where any person feloniously injured within the colony
shall die beyond the limits of the colony, the offence may
be dealt with in the colony where the injury was inflicted.
Other Acts enable Colonial Legislatures to make laws
having a true operation outside their limits {a) as enabling
acts of authority to be done, or jurisdiction to be exercised
in respect of acts done or things happening, out of the
colony, e.g. the Colonial Prisoners Kemoval Act, 1869, the
Colonial Naval Defence Act, 1865, the Merchant Shipping
Act, 1894, §§ 478 (Colonial Inquiries), 736 (Coastal Trade);
or (b) as giving to Acts of the Colonial Legislature the force
of law throughout the British Dominions, e.g. 28 and 29
Vict., c. 64, an Act to remove doubts respecting the validity
of certain marriages contracted in Her Majesty's Posses-
sions abroad. This is generally effected by an Order in
Council made in pursuance of the enacting Imperial Act.

(c) The territorial boundaries set to a colony, whether
by the Crown or by an Act of Parliament, and the con-

iSee Low v. Boutledge (1865), L.R. 1, Ch. 42; 4 E. and I. App. 100;
M'Leod V. Att.-Gen. for New South Wales L.R. [1891], A.C. 455 ; and see
the colonial cases collected and discussed by Mr. Lefroy in his Legislative
Power in Canada.

^Ci. M'Leod v. A.G. for Neio South Wales and Ashhury v. Ellis, L.R.
[1893], A.C. 339.

TERRITORIAL BOUNDARIES. 9

stitution of a colony bind the legislature of the colony.^
As far as the constitution is concerned, special power has
been given in the Constitution Acts of the Australian
Colonies to alter the constitution subject to the observance
of certain forms, and by the Colonial Laws Validity Act,
1865, § 5, every representative legislature has full power,
and is deemed at all times to have had full power to make
laws respecting the constitution, powers, and procedure of
such legislature, to establish and reconstitute courts and
to make provision for the administration of justice therein.
As to the territory of the colonies, this also is the subject
of special provision in the Constitution Acts, having in
view the great extent of New South Wales, South Australia,
and Western Australia ; and very naturally the power of sub-
division was, subject to limitations, left in the hands of the
Crown. In 1895 the Imperial Parliament passed the Colonial
Boundaries Act, which, while conferring general powers of
severance and delimitation on the Crown, provides that in
the colonies with responsible government — which are set
out in a schedule and include all the Australian Colonies^
the power shall not be exercised except with the consent of
the colony.

{d) The " local and territorial " nature of colonial
legislatures has been regarded as implying the reservation
of certain matters in which there must be one law for the
Empire, or which fall within an Imperial rather than a
local policy. Such matters are of course generally the
subject of Imperial legislation, so that any Colonial Act
thereon would be over-ridden by the Act of the paramount
authority ; but the opinion in question is that the matters
referred to are excluded from the area of Colonial power,
and that an Act of the Legislature under the general power
to make laws for the possession would be ultra vires.

Colonial Acts conferring upon aliens the privileges of
British subjects within the possession are the most common
illustration of matters of this class, as is seen from Chalmers'

iCf. Reg. V. Burah (1878), L.R. 3, A.C. 889, per Lord Selborne at p.
905.

10 SOURCES OF THE LA WS.

Opinions. Sometimes the law officers allowed them to
pass, more often they were disallowed, as beyond the
province of a colony. At last 10 and 11 Vict., c. 83, was
passed to quieten doubts ; and besides confirming Colonial
Acts of Naturalization, it conferred the power of local
naturalization upon all Colonial Legislatures, a power con-
firmed by the Naturalization Act, 1870, § 16. In their
fiscal and commercial policy, in the regulation of shipping
and the jurisdiction of Admiralty, the colonies came at the
outset under a political system which treated these matters
as Imperial. As the older policy has been abandoned, it
has generally not been deemed sufficient to repeal the
paramount Imperial Acts; power of legislation has been
specially conferred. In regard to duties of customs, the
restrictions which accompanied the grant of representative
institutions to the Australian Colonies by 13 and 14 Vict.,
c. 59, have been removed by 36 and 37 Vict., c. 22, and 58
Vict., c. 3. The special powers to make laws with respect to
the coasting trade and certain other matters of shipping are
due partly no doubt to the " territorial " limitations on the
legislature, but partly also to the opinion that the regulation
of trade was essentially Imperial. The same may be said
of defence. The Colonial Naval Defence Act, 1865, though
in supplement of the territorial powers of the Colonial
Legislatures, also authorizes the proper legislative authority
to make proper provision for maintaining discipline among
the officers and men while ashore or afloat within the limits
of the colony (§ 3). The Army Act 1881, § 177, provides
that where a force is raised in a colony, any law of the
colony may extend to such force, whether within or without
the limits of the colony; and that when such force is
serving with Her Majesty's regular forces, the Act shall be
in supplement of the law of the colony. The Court of the
Vice- Admiral in a colony has always been a branch of the
Admiralty and outside the Colonial system of courts and
jurisdiction. The Court, its judge, and jurisdiction alike
have been regulated by Imperial and not by Colonial
Statutes and Orders. In 1890, however, by the Colonial

ORDERS UNDER COLONIAL ACTS. 11

Courts of Admiralty Act, it was provided that every court
of law in any colony declared in pursuance of the Act to be
a Court of admiralty, and in the absence of such declara-
tion, every court with unlimited civil jurisdiction should
have the same admiralty jurisdiction as the High Court in
England ; and (§3) the legislature of any British possession
may declare any of its courts of unlimited civil jurisdiction
to be a Colonial Court of Admiralty, and may limit
territorially or otherwise its admiralty jurisdiction, and
may vest partial or limited jurisdiction in any inferior
or subordinate court. The Legislature may not, however,
confer any jurisdiction not by the Act conferred upon a
Colonial Court of Admiralty.

The opinion that for some matters the Colonial Legisla-
ture does not possess the power even of internal legislation
has thus been a reason for conferring special powers.
Whether it is well founded has never been authoritatively
decided. But if it was a correct opinion, its effect does not
appear to be altered by the Colonial Laws Validity Act,
1865, for that Act merely deals with the ground of
repugnancy to the laws of England, and, as was pointed
out ^ many years ago, the objection of " repugnancy " is one
thing, the objection of " want of power" is another.

6. Orders under Acts of Colonial Legislatures. —
Rules, Orders, and Regulations issued by some authority
within the colony under powers conferred by the Colonial
Legislature, e.g. the Governor-in-Council, are hardly to be
regarded as an independent source of law. But the
Governor has power under some Imperial Acts to issue
proclamations making regulations upon certain matters,
e.g. the Merchant Shipping Act, 1894, §§ 366 and 367, and
" every such proclamation shall have effect without as well
as within such possession, as if enacted in this part of this
Act."

^See Papers of the Juridical Society, vol. iii., "Competence of Colonial
Legislatures to enact Laws in Derogation of Common Right," by T. C.
Anstey.

12 SOURCES OF THE LAWS.

THE AUSTRALIAN COLONIES.

NEW SOUTH WALES.

Captain Phillip's expedition arrived at Botany Bay on
the 18th January, 1788, and formal possession of Sydney
Cove was taken on the 26th January, which is observed in
Australia as " Foundation Day," though the proclamation of
the colony did not take place until the 7th February. The
Governor's commission and proclamation embraced the
present colony of New South Wales, Tasmania, Victoria,
and Queensland, as well as part of New Zealand and of the
Western Pacific. The early government was little in accord
with the principles applicable to free settlements, and much
that was done in the name of authority had a very slender
basis of law to support it. The uncertainty as to the
legality of the government was met by the Statutes of
4 Geo. IV., c. 96, with the Charter of Justice of the 13th of
October, 1823, and 9 Geo. IV., c. 83. Although the Act
under which the colony was founded (27 Geo. III., c. 2)
contemplated the establishment of " a colony and civil
government," the true foundation of civil as distinguished
from military government dates from 1823. A Supreme
Court with the ordinary adjuncts of a common law court as
contrasted with those of a court martial was established,
and the Ordinances of a Council, equipped by Statute with
legislative power, took the place of the doubtful regulations
of the Governor. In 1829 the Australian Courts Act, 1828
(9 Geo. IV., c. 83), superseded the temporary provisions of
the Act of 1823 ; and while confirming the Supreme Court
and the Legislative Council, the Act also set at rest doubts
concerning the law in force in the colony. Section 24 of
the Act provided "that all Laws and Statutes in force
within the Realm of England at the time of the passing of
this Act (not being inconsistent herewith, or with any
Charter, or Letters Patent, or Order in Council which may
be issued in pursuance hereof) shall be applied in the
Administration of Justice in the Courts of New South

TASMANIA. 13

Wales and Van Diemen's Land respectively so far as the
same can be applied within the said colonies." This has
been construed as not applying merely to procedure on the
one hand nor introducing the whole law of England on the
other, but putting the colony in the same position as if it
had been founded on the 2Dth July, 1828. The law enacted
in the colony includes :

1. Laws and Ordinances made by the Governor and a
nominee Council established by Royal Warrant coming
into operation in 1825 under the authority of 4 Geo. IV.,
c. 96, continued by 9 Geo. IV., c. 83.

2. Laws made by the Governor and a Legislative Council,
one third nominee, two thirds elective, established by 5 and
6 Vict., c. 76. The Constitution and powers of the Council
were affected by 13 and 14 Vict., c. 59.

3. Laws made by the Queen and a Legislative Council
(nominated), and Legislative Assembly (elective), established
by 18 and 19 Vict., c. 54 (empowering the Queen to assent
to the New South Wales Act, 17 Vict., No. 41).

4. Orders, Rules, and Regulations made by various
authorities in pursuance of powers conferred by the
Legislature of the Colony.

New South Wales has never been a member of the
Federal Council of Australasia.

TASMANIA.

Although the commission of Governor Phillip included
the territory of Van Diemen's Land, there was no settle-
ment there until the arrival of an expedition under
Lieutenant Bowen, on September 12th, 1803. Bowen was
commissioned " Commandant of the Island of Van Dieman"
by Governor King of New South Wales ; and in February,
1804, the island was made a Lieutenant-Governorship under
New South Wales. For some years it was treated less as .
an integral part of New South Wales than as a dependency
of that colony. The Act of 1823, which established a Council
in New South Wales to make laws for that " colony and its
dependencies," authorized the establishment of a Supreme

14 SOURCES OF THE LAWS.

Court of Judicature for Tasmania, with an appeal to the
Governor of New South Wales. This power was exercised
on October 13th of the same year. Section 44 of the Act
empowered the Crown to erect Van Diemen's Land into a
"^separate colony independent of the Government of New
South Wales, and to commit to any person or persons
within the island of Van Diemen's Land such and the like
powers, authorities, and jurisdictions as might be committed
to any person or persons in New South Wales. On
December 3rd, 1825, the island was proclaimed a separate
colony, and the appropriate legislative and executive
authority established. By the Australian Courts Act,
1828, provision was made for the government of Van
Diemen's Land identical with that made for New
South Wales {q.v.), including the provision for the
introduction of the Laws of England in the adminis-
tration of justice. A Charter of Justice, dated March 4th,
1831, was granted under the powers of the Acts of
1823 and 1828. When the representative principle was
introduced into New South Wales in 1842, all that was
done for Van Diemen's Land was to make permanent
the arrangements of the Act of 1828 and to enlarge the
number of members of Council (see 5 and 6 Vict., c. 76,
§ 53). The island was, however, embraced in the constitu-
tional arrangements of the Act of 1850 (13 and 14 Vict.,
c. 59), and that under that Act acquired a Legislative
Council, one third nominated and two thirds elected, with
the power to alter its own Constitution. This power was
exercised by 17 and 18 Vict., No. 17, passed on October
31st, 1854 (confirmed by 25 and 26 Vict., c. 11), and a
Legislative Council and Legislative Assembly, both elected,
were substituted for the old Legislative Council. The new
Legislature began its first session in December 2nd, 1856.

The colony was an original member of the Federal
Council of Australasia (constituted by 48 and 49 Vict.,
c. 60), and has remained a member ever since.

VICTORIA. 15

VICTORIA.

The Colony of Victoria was established by separation
from New South V^ales on July 1st, 1851, under the
provisions of 13 and 14 Vict., c. 59, § 1, and was upon that
day duly proclaimed by the Governor-General. Thereupon
the authority of the Legislative Council of New South
Wales over the colony ceased and determined. The law of
the colony includes :

1. Laws and Ordinances of the Legislative Council of
New South Wales up to July 1st, 1851, which by the Act
were continued in operation in the colony until such time
as the Governor and Legislative Council of Victoria should
see fit to repeal or alter them.

2. From July 1st, 1851, to March 20th, 1856, Laws and
Ordinances of the Governor and Legislative Council of
Victoria (one third nominated, two thirds elected).

3. From November 21st, 1856, Laws made by a Legisla-
ture consisting of Her Majesty, a Legislative Council, and a
Legislative Assembly (both elected), established by 18 and
19 Vict., c. 55, empowering Her Majesty to assent to a Bill
as amended, passed by the Governor and Legislative Council,
entitled "An Act to establish a Constitution in and for
the Colony of Victoria." This Act was proclaimed in the
colony on November 23rd, 1855, and thereupon came into
force.

4. Orders, Rules, and Regulations made by various authori-
ties in pursuance of powers conferred by the Legislature of
the Colony.

5. Statutes of the Federal Council of Australasia since
1886.

QUEENSLAND.

The Moreton Bay District of New South Wales was
by letters patent proclaimed a separate colony under the
name of Queensland on the 6th of June, 1859, in pursuance
of a power contained in 5 and 6 Vict., c. 76, §§ 51 and 52 ;
13 and 14 Vict., c. 59, §§ 34 and 35; and 3 8 and 19 Vict.,

16 SOURCES OF THE LAWS.

c. 54, schedule 1, § 46. The law of the colony therefore
includes :

1. The Ordinances and Statutes of New South Wales up
to the date of separation so far as not varied or repealed by
the Legislature of Queensland.

2. The Statutes passed by a Legislature consisting of the
Governor, Legislative Council, and a Legislative Assembly
established by an Order in Council of June 6th, 1859,
v^alidated and effectuated by 24 and 25 Vict., c. 44.

3. Orders, Rules, and Regulations made by various autho-
rities in pursuance or powers conferred by the Legislature
of the Colony.

4. Statutes of the Federal Council of Australasia since
1886.

SOUTH AUSTRALIA.

In 1834 Parliament was persuaded to sanction an experi-
ment in free colonization, and on the 28th of December,
1836, under the powers contained in the 4 and 5 Will. IV.,
c. 95, His Majesty proclaimed " The Province of South
Australia." The Act specially exempted the province
from the laws and jurisdiction of any other part of
Australia. The law enacted in the colony consists of:

1. Ordinances or Acts of Council passed from December
28th, 1836, up to and inclusive of the year 1843, by a
Council consisting of the Governor and four official
members constituted under the authority of 4 and 5 Will.
IV., c. 95, and 1 and 2 Vict., c. 60.

2. Ordinances or Acts of Council passed from the year
1844 to the 21st of February, 1851, both inclusive, by a
Legislative Council consisting of the Governor, three official
and four non-official members, constituted under the
authority of 5 and 6 Vict., c. 61.

3. Ordinances or Acts of Council passed from the 3rd
of October, 1851, to the year 1856, both inclusive, by
the Governor and a Legislative Council of twenty-four
members, eight nominated by the Crown and sixteen
elected, constituted under Ordinance No. 1 of 1851, pur-

WESTERN AUSTRALIA. 17

suant to power given by the Imperial Statute 13 and
14 Vict., c. 59.

4. Acts passed from 1857 inclusive down to the present
day by the Parliament of South Australia constituted
under the Constitution Act No. 2 of 1855-6, which Act
itself was authorized by 13 and 14 Vict., c. 59, the
" Act for the better government of Her Majesty's Aus-
tralian Colonies."

5. Orders, Rules, and Regulations made by various
authorities in pursuance of powers contained in these
Acts.

South Australia in 1888 became a member of the
Federal Council of Australasia, and sent delegates to the
session of 1889. No law affecting her was passed, and
she ceased to be a member before the next session.

WESTERN AUSTRALIA

The Colony of Western Australia was declared a British
Colony by settlement on May 2nd, 1829^^ and the first
governor entered upon bis government on June 1st, which
is said ^ to be the date of the introduction of English law.
The law enacted in the colony consists of:

1. Laws, Institutions, and Ordinances made by persons
appointed first by Order in Council of December 29th,
1831, under 9 and 10 Geo. IV., c- 22.. The power of
appointment was continued from time to time by other
Acts, and the " Persons " were increased in number and
became a " Legislative Council." A non-official element
was introduced in 1839, and in 1868 a representative
element. This Legislature began to exercise its powers
at the commencement of 1832 and continued until the
end of 1870.

2. Laws made by the Governor and a Legislative Coun-
cil (one-third nominated and two-thirds elected) established
in 1870 by Ordinance of the Council last mentioned (Act
No. 13, June 1st, 1870) under the authority of 13 and 14
Vict., c. 59, § 9.

'^Journal of the Society oj Comparative Legislation, N.S., No. 1, p. 71.

18 SOURCES OF THE LAWS.

3. Laws made by the Queen with a Legislative Council
and Legislative Assembly established by 53 and 54 Vict.,
c. 26 (empowering the Crown to assent to Western
Australian Constitution Act, 1889, passed by the Legis-
lative Council).

4. Orders, Rules, and Regulations issued under the
authority of the Ordinances or Acts.

5. Since 1886 Acts of the Federal Council of Australasia.

CHAPTEE 11.

THE HISTORY OF AUSTRALIAN FEDERATION.

The dangers which attended the existence in a remote
part of the world of a group of separate colonies became
apparent as soon as the first of those colonies obtained
the most rudimentary form of self-government. An
Imperial Act of 1842 provided for the establishment of
a Legislature in New South Wales, of whose members
two-thirds were to be elected by the inhabitants of the
colony. In a few years the Legislatures of New South
Wales and Van Diemen's Land were in conflict on the
tariff, and Sir Charles Fitzroy, the Governor of New
South Wales, in recommending the disallowance of an
Act of the Council of Van Diemen's Land, indicated at
once the danger and the remedy. He considered it
"extremely desirable that the colonies in this part of
Her Majesty's dominions should not be permitted to pass
hostile or retaliatory measures calculated not only to
interrupt their commercial intercourse with each other,
but to create feelings of jealousy and ill-will which, if not
checked, may lead to mischievous results." It appeared
to him that, " considering its distance from home and the
length of time that must elapse before the decision of
Her Majesty's Government upon measures passed by the
Legislatures of these colonies can be obtained, it would be
very advantageous to their interests if some superior
functionary were to be appointed to whom all measures

20 THE HISTORY OF AUSTRALIAN FEDERATION.

adopted by the local legislatures affecting the general
interests of the mother-country, the Australian Colonies, or
their inter-colonial trade should be submitted by the
officers administering the several governments before their
own assent is given." The necessities of trade which called
forth this, the first suggestion of a single control, have been
to the last the central fact upon which the federal move-
ment has depended, at once the most formidable obstacle —
"the lion in the path" — and the great impelling force.

That the evils foreseen by Sir Charles Fitzroy would
grow with the increase in the number of the colonies was
apparent to the Committee for Trade and Plantations to
which in 1849 Earl Grey referred the subject of the
better government of the Australian Colonies. The Com-
mittee reported that the separation of Port Phillip from
New South Wales — which they recommended — would
probably be followed by differences in tariff which would
become a grave inconvenience as the number of settlers
on both sides of the dividing line increased; and to
prevent this they proposed that a uniform tariff for
Australia should be fixed by the Imperial Parliament.
For the adjustment of this tariff from time to time there
was to be a General Assembly, representative of all the
colonies, to be summoned from time to time by a Governor-
General. The mode of constituting the General Assembly
was indicated, and to it were to be committed, besides
the tariff, postal communications, inter-colonial transit,
the erection and maintenance of beacons and lighthouses,
port and harbour dues on shipping, and the regulation
of weights and measures. The General Assembly was,
to have power to establish a General Supreme Court
with original and appellate jurisdiction, and generally to
enact laws upon subjects referred to it by the Legislatures
of the colonies. Finally, there was to be allowed to the
General Assembly a power of appropriating funds for the
purposes committed to it.^

^ For the full report, see The Colonial 'Policy of Lord John Russell's
Administration, vol. i., Appendix.

CONSTITUTION BILL OF 1850. 21

The Constitution Bill of 1850, introduced by Earl Grey, -^
adopted the scheme of the Committee for Trade and Plant-
ations for the establishment of a general executive and
legislative authority in Australia to "superintend the
initiation and foster the completion of such measures as
those communities may deem calculated to promote their
common welfare and prosperity." The scope of the
General Assembly was extended in the Bill by a pro-
posal to put the " waste lands " of the colonies under
that body as a means of preventing the dissipation of
the resources of the colonies by the competition of
different land systems, and the Government promised
consideration to a suggestion that a Supreme Court
should be established for the settlement of disputes
between the colonies. Neither in Parliament nor in the 1 1 **
colonies was the measure cordially received. In England /
the fact that the colonies had not asked for such super- ^
intendence and supervision, in Australia jealousies among
the colonies and of the Colonial Office combined to make
the scheme unpopular. The General Assembly clauses
passed the Commons, but were withdrawn in the Lords.
The amendments required could hardly be made without
communicating with the colonies. Meanwhile the im-
mediate object of the Bill — the separation of Port Phillip
from New South Wales — was pressing, and the establish-
ment of a General Assembly could be dealt with at some
future time.

That part of the scheme which concerned a General "
Executive, however, did not require legislative sanction;
and Earl Grey had not abandoned his scheme. Ac-
cordingly, in 1851 Sir Charles Fitzroy was appointed
"Governor-General of all Her Majesty's Australian posses- /
sions, including the Colony of Western Australia," and the
Lieutenant-Governors were instructed to communicate with
the Governor-General in matters of common interest. Not
less important were the Commissions appointing the
Governor-General Governor of each of the colonies, for
they enabled him by a visit to any colony at once to

22 THE HISTORY OF AUSTRALIAN FEDERATION.

assume the administration of government there. ^ But
Earl Grey left the Colonial Office in 1852, and the nursing
policy was abandoned. In the future, suggestions for the
government of Australia must come from the colonies
themselves, and on matters of common concern the Home
Government must be well assured that the colonies were
thoroughly agreed before any action could be taken. In
1855 the Lieutenant-Governors became Governors, and in
1861 the Duke of Newcastle determined not to renew the
commission of Governor-General in the Governor of New
South Wales, on the ground that such a title indicated " a
species of authority and pre-eminence over the Governors
of other colonies which .... could not with justice be
continued, and if continued could not fail to excite dissatis-
faction very prejudicial to their common interests."

In Australia the expediency of a general, or as it soon
came to be called a federal, government for Australia
demanded too much political foresight to capture the
popular imagination. Earl Grey's hopes were, however,
shared by Wentworth and Deas-Thomson in New South
Wales, and by Mr. Charles Gavan Duffy in Victoria. In
1853 Committees of the Legislative Council in New South
Wales and Victoria were preparing Constitutions embody-
ing responsible government in those colonies. Wentworth
succeeded in inducing the Legislative Council of New
South Wales to declare in very emphatic terms for a
scheme substantially the same as Earl Grey's, and Victoria
more guardedly recorded an opinion in favour of occasion-
ally convoking a general assembly for legislating upon
subjects submitted to it by any legislature of the colonies.
The Constitution Bills forwarded to England, however, dealt
purely with the affairs of the two colonies respectively, and
a Government whose hands were very full in 1855 did not
see its way on the thorny path of constitution making for
the colonies.

But Wentworth, who had returned to England, and Mr.
Gavan Duffy, who had come to Victoria, and Deas-Thomson

^ See Jenks, Government of Victoria, 155-6.

1857. 23

pursued the subject with zeal ; and the year 1857 was one
of promise for the federal cause. The "General Association
for the Australian Colonies," under Wentworth's auspices,
adopted a Memorial to the Secretary of State, which indi-
cated matters in which the difficulty of securing joint
action had already been experienced, and, after urging the
duty of Her Majesty's Government to anticipate the wants -f

of the colonies, sketched out the scheme of a permissive ) f
bill for the establishment of a General Assembly. The
Legislatures of the colonies were to appoint an equal
number of representatives to a Convention for framing a
Constitution for a Federal Assembly. There was no
mention of a federal executive, and the expenses of the
Federal Assembly were to be apportioned amongst, and ^
provided by, the Legislatures of the colonies. The body
contemplated was in fact not very different from the
Federal Council established in 1885. The list of federal
subjects is, however, an extensive one, and bears witness to
the growing inconvenience of separation. The reply to the
Memorial was written by Mr. Herman Merivale, and was a
non possumus. The Secretary of State was sensible of the
difficulties which had been experienced, and was aware that
they were likely to increase. He did not think, however,
that the colonies were prepared to give such large powers
to the Assembly in respect to taxation and appropriation as
were involved in the tariff and many other matters to be
submitted; and even if they were to assent in the first
instance to the establishment of such a scheme, the further
result, in his opinion, would probably be dissension and
discontent. He would readily give attention to any
suggestion from the colonies for providing a remedy for
defects which experience might have shown to exist in
their institutions and which the aid of Parliament was
required to remove. If the establishment of some general
controlling authority should be impracticable, he trusted
that much might be done by "negotiations between the
accredited Agents of the several Local Governments, the
results agreed upon between such Agents being embodied

24 THE HISTORY OF AUSTRALIAN FEDERATION.

in Legislative measures passed uniformly and in concert by
the several Legislatures." More important were the steps
taken in the colonies. Independent action was taken in
New South Wales and Victoria by the appointment of
committees of the Legislature to consider the subject of
federation. Mr. Charles Gavan Duffy's Committee was the
first to conclude its labours, and its report is a striking
J statement of the case for federation. After affirming that
there is unanimity of opinion as to the ultimate necessity
for federal union, the report proceeds : — " We believe that
the interest and the honour of these growing states would
be promoted by establishing a system of mutual action and
co-operation amongst them. Their interest suffers and
must continue to suffer while competing tariffs, natural-
ization laws, and land systems, rival schemes of immi-
gration and of ocean postage, a clumsy and inefficient
method of communication with each other and with the
Home Government on public business, and a distant and
expensive system of judical appeal exist. The honour and
importance which constitute so essential an element of
national prosperity, and the absence of which invites
aggression from foreign enemies, cannot perhaps in this
generation belong to any single colony in this southern
group, but Bday, and we are persuaded would, be speedily
attained by an Australian Federation representing the
entire. Neighbouring states of the second order inevitably
become confederates or enemies. By becoming confederates
so early in their career, the Australian Colonies would, we
believe, immensely economize their strength and their
resources. They would substitute a common national
interest for local and conflicting interests and waste no
more time in barren rivalry. They would enhance the
national credit, and attain much earlier the power of
undertaking works of serious cost and importance."
Finally the Committee recommended a conference of New
South Wales, Tasmania, Victoria, and South Australia, and V
laid down with minuteness the questions which such a
conference would have to consider. The New South Wales

DEVELOPMENT OF TARIFF DIFFICULTIES. 25

Committee recognized the difficulties that attended an
attempt to deal with the subject, but shrewdly observed
that those difficulties were likely to increase rather than
diminish. In 1858 the four colonies had agreed to a '^
conference, and in 1860 the new colony of Queensland gave
in her adhesion. All this, however, was not without reser-
vation. South Australia was of opinion that the project of
a Federal Legistature was premature, but believed that
there were many topics on which uniform legislation would
be desirable. Queensland, as was to be expected from her
newly won independence, foresaw obstacles to the creation
of a " central authority tending to limit the complete
independence of the scattered communities peopling this
continent." A change of Ministry in New South Wales led
to a change of policy there, and despite urgent representa-
tions from Victoria and Tasmania, the proposed conference
never took place. The fiscal conference held in 1863 for
the purpose of attempting an agreement on the tariff
declined without instructions to consider federation.

The six colonies of Australia were now well started on t-
their career as separate countries; and as they developed
separate interests and separate policies, the prospects of
union became more and more remote. The tariff had been*^
a source of trouble from the beginning. The difficulties
were of more than one kind. The geographical situation of
the colonies was such that goods imported into the colony
with the lowest duties could readily find their way into
other colonies, and in this way evasion of the revenue laws
was systematized, for it was impossible for the colonies to
bear the expense of a service capable of guarding their
frontiers. It was for this reason that the need for a
uniform tariff was insisted upon in the early years. Even
when there was no desire to evade the higher revenue
duties, it was often the case that the port of a particular
territory was either by natural situation or the course of
trade in another colony. Agreements were made which in
a rough and ready way provided a remedy. New South
Wales and Van Diemen's Land for some years mutually

26 THE HISTORY OF AUSTRALIAN FEDERATION.

gave free admission to goods. In lcS55 an arrangemeni
was come to by New South Wales, Victoria, and South
Australia whereby, first, no import duties were to be taken
on goods crossing the Murray, the frontier of New South
Wales and Victoria ; and, secondly, goods coming by water
carriage up the Murray for New South Wales or Victoria
paid duty at Adelaide, New South Wales and Victoria
dividing equally the proceeds of collection. This arrange-
ment subsisted until 1864, when negotiations for a revision
of the system of distribution broke down. The agreement
with some modifications was renewed, and was finally
terminated in 1873. A modified system of intercolonial
free trade, by which each colony admitted free goods bona
fide the produce of any other colony, was suggested by
South Australia in 1862, but received little encouragement.
There was in fact another obstacle than the inability to
agree. All the colonies were restrained by Imperial Acts
from establishing preferential or differential duties; and

^ this applied equally to their relations with each other as
with the outside world. The colonies set themselves there-
fore in the first instance to secure the removal of these
obstacles, and intercolonial conferences asked the Home
Government to permit reciprocal arrangements among the

^colonies. At first these proposals met with little en-
couragement. Successive Secretaries of State — the Duke
of Buckingham in 1868, Earl Granville in 1869, and Lord
Kimberley in 1870 — felt that they could not with propriety
ask Parliament to assent to a measure whereby one part of
the British Dominions might differentiate against another;
and the Home Government was affected by the fear of
complicating foreign relations. The Colonial Office, how-
ever, pointed out that the objections and the difficulties of
the Home Government would be removed by a " complete
customs union," or by any arrangement which made the
Australian Colonies one country instead of several countries.
In 1873 the resistance of the Imperial Government gave
way before the insistence of the colonies ; and the Austra-
lian Colonies Duties Act, 1873, removed all obstacles to

ROYAL COMMISSION IN VICTORIA, 1870. 27

tariff arrangements amongst the members of the Austra-
lian group. The removal of legal restraints had, however, no
other result than to mark the width of the gap between
the colonies. The question between them was no longer
the mere adjustment of tariff regulations so as to meet the
financial necessities of all and to secure to each its fair
share of revenue collected. Protection had taken firm root
in Victoria ; and it was not long before that colony was as
much concerned to protect her agricultural products and
her pastoral industry against her neighbours as to protect /
her manufactures against the " pauper " labour of Europe.
The way was thus barred to the free exchange even of
Australian products, for Victoria would hear of it on no
other terms than that her manufactures should find a free
market in the other colonies. Protection begot retaliation ;
and after an unsuccessful attempt to effect a fiscal union in
1881, it became evident that in the interests of peace the
tariff must be laid aside for a time.

The impossibility of establishing a customs union, and the
bitterness of feeling which attended the tariff differences,
gave little hope for the cause of federation. Still there
were other matters in which disunion meant inconvenience
and even danger; and in 1870 Mr. Charles Gavan Duffy
obtained a Royal Commission in Victoria on the best means /
of accomplishing a federal union of the Australian Colonies.^
The time was one in which the foreign relations of the
Empire, both with Europe and America, wore an unusually
threatening aspect; and there were not wanting responsible
statesmen both in England and the colonies who believed
on the one hand that the colonies were a source of en-
tanglement and weakness to England", and on the other
that the connection with England was the one thing
which threatened the peace of the colonies. There were
also plentiful elements of discord within the Empire, and
the recent confederation of the Canadian Provinces was
generally regarded as a step towards independence. In
the not unlikely event of war, the colonies were in a
peculiarly exposed condition, for the Home Government

28 THE HISTORY OF AUSTRALIAN FEDERATION.

had just carried through the withdrawal of Imperial
troops from the colonies in pursuance of the policy-
approved by the House of Commons. The report of Mr,
Charles Gavan Duffy's Commission bears the impress of
the times. Urging as before the importance on sentimental
grounds of creating a united nation, the report declared
that the colonies presented the unprecedented phenomenon
of responsibility without either corresponding authority or
adequate protection. They were as liable to all the hazards
of war as the United Kingdom, but they were as powerless
to influence the commencement of war as to control the solar
system ; and they had no certain assurance of that aid against
an enemy upon which the integral portions of the United
Kingdom could reckon. This was a relation so wanting
in mutuality that it could not be safely regarded as a lasting
one, and it became necessary to consider how far it might
be so modified as to afford greater security for permanence.
//Reference was made to the former relation between England
and Hanover, and between England and the Ionian Isles,
which showed that two sovereign states might be subject
to the same Prince without any dependence on each other,
and that each might retain its own rights as a free and
sovereign state. The only function which the Australian
Colonies required to entitle them to this recognition was
the power of contracting obligations with foreign states;
" the want of this power alone distinguishes their position
from that of states undoubtedly sovereign." " If the Queen
were authorized by the Imperial Parliament to concede to
the greater colonies the right to make treaties, it is con-
tended that they would fulfil the conditions constituting a
sovereign state in as full and perfect a manner as any of
the smaller states cited by jurists to illustrate this rule of
limited responsibility; and the notable concession to the
interests and duties of humanity made in our own day by
the great powers with respect to privateers and to merchant
shipping, renders it probable that they would not on any
adequate grounds refuse to recognize such states as falling
under the rule." " It must not be forgotten that this is a

DIFFICULTIES IN SPHERE OF FOREIGN AFFAIRS. 29

subject in which the interests of the mother-country and
the colonies are identical. British statesmen have long
aimed not only to limit more and more the expenditure
incurred for the defence of distant colonies, but to with-
draw more and more from all ostensible responsibility for
their defence, and they would probably see any honourable
mode of adjusting the present anomalous relations with no »
less satisfaction than we should." The Imperial Government ) \ '
might ascertain the views of the African and American
colonies and take the necessary steps to obtain its recog-
nition as part of the public law of the civilized world.^
The circulation of the report elicited expressions of opinion
from a number of public men in the colonies (amongst them
Mr., afterwards Sir Henry Parkes) as to which Sir C. G.
Duffy has since remarked that " a dozen years had not
apparently ripened the question for action, but apparently
had raised a plentiful crop of new objections." The truth
was, however, that to men unaccustomed to the refinements
of public law. Sir Charles Duffy's neutrality scheme sug-
gested separation. There was small faith in the sanctity of
neutrality, and the general opinion was probably expressed
by the gentleman who observed that " no enemy who had
the means or power to attack us would respect our
neutrality."

Australia was in fact beginning to have foreign affairs ^
very near her door, and the policy of more than one great ^
Power began to develop in the Pacific in a manner which -
would compel Australia to adopt a counter policy, to main- -
tain which she would require at her back the whole
strength of the Empire. It was in 1870 that an inter- *-
colonial conference first discussed the subject of defence and "
the Pacific question. Present interest centred upon Fiji, -
where the lawlessness of the relations between natives and
European traders had long been a grave scandal : and after
many negotiations and inquiries, the islands were ceded to
Great Britain in 1874. In 1864 France sent her first"
consignment of criminals to New Caledonia ; and Australia,
'^Parliamentary Papers, Victoria, 2nd Session, vol. ii., p. 247.

i

30 THE HISTORY OF AUSTRALIAN FEDERATION.

which in the eastern colonies had long got rid of transpor-
tation, saw the last arrival of convicts in the west in 1867.
The colonies were not disposed to view with equanimity the
establishment of the hated thing so near their shores ; and
their sentiments no doubt magnified the dangers of escaped
convicts finding a city of refuge on Australian shores.
There was reason to believe that France, anxious to increase
her possessions and extend her system, intended to annex
New Hebrides and to use them for the wholesale trans-
portation of her most hopeless criminals. An agreement
in 1878 between England and France that neither should
annex the islands did not altogether allay apprehensions,
and the designs of France have always been and are now
regarded with suspicion in Australia. In the Samoan
group, important German and American interests were
established, and wound themselves about the complicated
internal politics of the islands, so that action by the
Governments became necessary, and the intervention of the
United States in 1875 was soon followed by that of
Germany.

In 1883 federation was "in the air." The junction of
the New South Wales and Victorian railways at Albury
led to an exchange of courtesies — then not too common —
between the politicians of the colonies, and many pious
wishes were expressed for federation. There the matter
might have ended, but that events outside Australia
suddenly gave a stimulus to action. The suspected designs
of Germany upon New Guinea had for some time aroused
anxiety in Australia. At last, the Government of Queens-
land sent a commissioner to take possession of New
Guinea, and, aware that the Home Government was likely
to disapprove of the step, at once took action to secure the
support of the other colonies, in which she had some
success, notably with the colony of Victoria. The Secretary
of State (Lord Derby), while repudiating the act of Queens-
land, took the opportunity of pointing out that :

" If the Australian people desire an extension beyond
their present limits, the most practical step that they can

FIRST A USTRALASIAN CONVENTION. 31

take, and one that would most facilitate any operation of
the kind and diminish in the greatest degree the responsi-
bility of the mother-country, would be the federation of
the colonies into one united whole which would be powerful
enough to undertake and carry through tasks for which no
one colony is at present sufficient." In November and ^
December, 1883, owing principally to the exertions of -
Mr. Service, the Premier of Victoria, the first Australasian
Convention met at Sydney to consider the subjects of " The
Annexation of Neighbouring Islands, and the Federation of
Australasia." The Convention consisted of Ministers from
the Australian colonies and New Zealand, and in the later
stages of the proceedings, Fiji was represented. The
Convention promulgated what has been called the Monroe *-
Doctrine of Australia. It resolved that "the further ^
acquisition of dominion in the Pacific south of the equator /
by any foreign power would be highly detrimental to the/
safety and well being of the British possessions in Austral-
asia and injurious to the interests of the Empire." Other
resolutions of the Convention urged the annexation of New
Guinea, protested against the transportation of French
criminals to the Pacific, and demanded that the understand-
ing of 1878 in regard to the New Hebrides with France
should be observed by that Power, or, if it were possible,
that the New Hebrides should be acquired by Great Britain.
Of these measures, the Convention declared that the colonies
were prepared to bear the cost, thus removing what had
hitherto been a great obstacle to the Home Government meet-
ing the wishes of the colonies in the extension of responsi-
bilities. But it was not the mere acceptance of a policy
with which Mr. Service would be content. In the course of
the correspondence which followed the action of Queensland,
Mr. Service, following up his emphatic declaration at
Albury , said : " That Confederation can now , be effected in
all its fulness I do not hope, but that some basis can be
agreed upon for a federal union of both a legislative and
executive character capable of dealing with those important
questions which are immediately pressing, and which will

32 THE HISTORY OF AUSTRALIAN FEDERATION.

gradually develop into a complete Australian Dominion, I
have the greatest hopes. Conferences hitherto have pro-
duced a minimum of result. Resolutions have been passed
over and over again, but as there existed no common
legislative body to give them force the greatest part of
them remained a dead letter. A limited federation now
would give practical effect to the wishes of the colonies on
those points on which they are agreed. A common danger
— the outpouring of the moral filth of Europe into these
seas — a common desire — to save the islands of Australasia
from the grasp of strangers — render federal action a
necessity, and federal action is only possible by means of a
federal union of some sort." The result fell short of his
aims ; but it marked a great step forward, for the Conven-
tion of 1883 gave birth to the Federal Council of Austral-
asia. At an Intercolonial Conference in the summer of
1880-81, the usual variety of matters had been discussed,
and it was clear that the colonies were completely at issue
upon the tariff. Sir Henry Parkes, however, chose the
occasion for submitting a series of resolutions on the subject
of federation, and laid before the Conference a Draft Bill
which he proposed should be introduced in the several
colonial legislatures. The resolutions affirmed that the
time was not come for the construction of a federal con-
stitution with an Australian Federal Parliament ; that the
time was come when a number of matters of much concern
to all the colonies might be dealt with more effectually by
some federal authority than by the colonies separately;
I that an organization which would lead men to think in the
direction of federation and accustom the public mind to
federal ideas would be the best preparation for the founda-
tion of federal government ; and that the Bill framed should
be the forerunner of a more mature system. The resolutions
were discussed and the Bill considered, but nothing came of
it. A proposal of Sir Graham Berry (Victoria), that the
Federal Council should be endowed from the sale and
occupation of the public lands of the colonies did not tend
to encourage confidence in the disinterestedness of Victoria's

FIRST AUSTRALASIAN CONVENTION. 33

zeal in the federal cause. The scheme which had fallen
flat in 1881 was revived in the Convention of 1888. On
the motion of Sir Samuel Griffith (Queensland), it was
resolved :

" That it is desirable that a Federal Australasian Council
should be created for the purpose of dealing with the
following matters :

1. The marine defences of Australasia beyond territorial
limits.

2. Matters affecting the relations of Australasia with the
islands of the Pacific.

8. The prevention of the influx of criminals.

4. The regulation of quarantine.

5. Such other matters of general Australasian interest as
may be referred to it by Her Majesty or by any of the
Australasian legislatures."

A committee was appointed to draft the necessary Bill ; ^%^,<*
and on the report a Bill was approved on the.mdiion of Sir "
Samuel Griffith : ^' "^ ' ^

" That this Conventioii^Vecognizing that the time* has not
yet arrived when a complete f^lai^|^J|fcion of th^ Austral-
asian colomga can be'^ttaiiSd, but co§|idering th0t"*^ere
are many meters of general interest with respect to which
united action would be advantagedi^^sj adopts the accom-
panying ]3ra^ Bill for the constitution of a Federal Council
as defining the matters upon which in its opinion such
united action is both desirable and practicable at the preselit
time, and as embodying the provisions best adapted to
secure that object so far as it is now capable of attainment."
In 1 884 all the colonies of the Australasian group (including
Fiji) except New South Wales and New Zealand adopted /
addresses praying for legislation on the lines of the Bill,V
and in August, 1885, the " Federal Council of Australasia
Act " received the Koyal assent.

The time from 1863 to 1883 is the time of Intercolonial
Conferences ; and not fewer than ten such conferences had
been held with a view to uniform action in various matters
of common concern. Postal and telegraphic communication

34 THE mSTORY OF AUSTRALIAN FEDERATION.

and the navigation of the Australian coasts urgently called
for agreement. As a result of a conference in 1867 New
South Wales passed an Act proposing to create a Federal
Council to carry into effect resolutions as to ocean mail
service. At one time the colonies were supporting in
rivalry three lines of steamers, and instead of the public
getting the advantage of competition, letters were detained
in the several colonies for the proper line. As we have
seen, the withdrawal of the Imperial forces brought defence
into the programme in 1870, and in the same year the
Pacific question was first discussed. In the early years the
land system, the goldfield regulations, and the trans-
portation of convicts to Western Australia are discussed.
The early importance of uniform land laws has been
referred to ; and in later times there has been some disposi-
tion to regard the vast area of unappropriated lands in
several of the colonies as an Australian asset.^ The
anomalies and scandals of the defective administration of
the law through inability to co-operate in the service of
legal process and the enforcement of judgments were
ventilated from time to time. The inconvenience of carry-
ing appeals to England was from early times the ground of
a demand for a General Court of Appeal for Australia.
South Australia and Victoria were for some years active in
promoting the establishment of such a Court, and in 1861
South Australia found a sympathetic Secretary of State in
the Duke of Newcastle. It was not until the conference of
1881 that the matter passed beyond the stage of a dis-

^ As witness Sir Graham Berry's proposal in the conference of 1881. At
the first meeting of the Federal Council a proposal was made that
50,000,000 acres of the waste lands of Western Australia should be
appropriated to form a fund for defence purposes ; and Western Australia
— which had not then received responsible government — was not un-
favourable to the plan if she could secure a federal guarantee for the
£5,000,000 required for the construction of a transcontinental railway. At
the Federation Conference of 1890, it was suggested that the unsettled
territories of Queensland, South Australia, and Western Australia should
be made federal ; and Sir Henry Parkes spoke of ' ' the immense advantage
to these colonies themselves if four or five new colonies were cut out of
their vast and unmanageable territories."

FAILURE OF INTERCOLONIAL CONFERENCES. 35

cussion and a Bill was agreed to, which, saving the
Prerogative, provided for an Australian Court of Appeal.
But it was entirely in accordance with custom that the
matter should end there. The tariff as a subject of con-
ference has been already considered ; and the other
principal matters suggested for joint action were the
regulation of Chinese immigration, and the suppression of
another " undesirable immigrant," the rabbit.

The failure of intercolonial conferences and its causes
are referred to by Mr. Service in the passage cited above.
The conferences were indeed a valuable means of educating
opinion amongst politicians as to the need of some closer
and permanent union of the colonies. But as a practical
method of getting business done they were almost useless
First, there was the difficulty of securing assent to a con-
ference at all. If the matter to be settled was a competing
claim on the part of two colonies, as in respect to rights in
the River Murray, or the adjustment of border duties, the
party in possession, who had something to lose and nothing
to gain, was well enough satisfied with the status quo.
Then time and place to suit the Governments of seven or
eight colonies — for New Zealand and Fiji were interested
members of the Australasian group — formed another
obstacle; and the common action aimed at seemed a
long way off when a prompt answer, or any answer
at all, to an invitation to conference was by no means
a common courtesy. When after months of correspond-
ence the conference assembled, it would be found that
some colony whose presence was of importance could not
send representatives. As a conference of States, the meet-
ing had all the marks which distinguish such a body from
the deliberative assembly of a nation. Every delegate was
charged first and foremost with the promotion of the
interests of his own colony ; the conference was in fact a
" congress of ambassadors from different and hostile
interests, which interests each must maintain as an agent
and advocate against other agents and advocates." The
vote was taken by States, so that the smallest colony had

36 THE HISTORY OF AUSTRALIAN FEDERATION.

equal voting power with the greatest. This, however, was
of small importance, because the majority had no power to
bind the minority ; the dissent of a single colony prevented
Australia from speaking with one voice to the Home
Government, and was often fatal to effective action in
matters within the powers of the colonies themselves. Nor
did unanimity in Council, even when it was obtained, by any
means, ensure unanimity in action. The delegates were
not plenipotentiaries ; they had in most matters no power to
bind; they could only bear a report and offer advice to
their principals. The neglect of a colony to carry out the
measures agreed upon was itself calculated to promote ill-
will and to give rise to accusations of bad faith, which
would have been more serious had not failure been so much
the rule as to count amongst the things expected. It was
said by Mr. Service in 1883 that of twenty-three subjects
discussed in the conferences not more than three had been
dealt with effectively, and of those agreements which
required uniform legislation not one had been carried out.
When the matter involved communication with the Home
Government, the presentation of a resolution to the
Secretary of State was but the beginning of negotiations
which had to be carried on with every member of the
group, and which rarely failed to disclose differences of
opinion amongst the colonies. The proposed amendment
of the law concerning fugitive offenders may serve as an
example. In 1867 the conference had passed a resolution
calling upon the Home Government to enlarge their juris-
diction in criminal matters. The Secretary of State pointed
out that the differences in the criminal law of the various
colonies presented certain difficulties, and invited sug-
gestions, and particularly a draft Bill, for the best mode of
giving the powers required. Some colonies were in favour
of one course, others proposed another ; some did not take
the trouble to answer the letters of the Colonial Office.
Three years' delay would have taxed the patience of a more
sympathetic Secretary than Earl Granville ; and in 1870
the Minister announced the decision of Her Majesty's

FEDERAL COUNCIL OF 1885. 37

Government not to proceed further in the matter, on the
ground of " the want of unanimity of opinion both as to
the proper mode of proceeding and as to the scope of the
proposed legislation."

Called into existence by the pressure of external con-
ditions at a time when the commercial policies of the
colonies were unfavourable to complete union, the Federal
Council was no more, than an attempt to provide a remedy
for the most obvious of the defects of the intercolonial
conferences. A constitutional body could be summoned, a
conference was merely invited. The conferences met at
irregular intervals; the Council was to meet at least once in
every two years. A conference could only recommend
legislation; the Council could make laws. A conference
had no corporate existence ; the Council was a permanent
body, and under the powers conferred by the Act (§ 24) it
proceeded at its first meeting in 1886 to appoint a Standing
Committee to act out of session, which should, through its
chairman, communicate with the Secretary of State. Thus
the Council lightened the burden of negotiation with the
Imperial Government. The functions of the Council were
mainly deliberative and advisory ; above all things it was
to have been the articulate vote of Australia. The legis-
lative function was subordinate; federal judiciary or
executive there was none. Altogether the Federal Coun-
cil of 1885 fully merited the description applied by Sir
Henry Parkes to his scheme in 1881 — "an unique body"
" formed upon no historical model."

In constitution the Council was modelled on the con-
ferences. The members of the Council were the colonies,
and while the Council itself had a permanent existence,
membership was purely voluntary, and terminated at
pleasure. Queensland, Victoria, Tasmania, and Western
Australia were the only constant members, and in 1891
Western Australia was unrepresented. Fiji was repre-
sented only at the first meeting of the Council, and
South Australia withdrew from membership after a single
session. But more serious was the fact that New Zealand

y\

38 THE HISTORY OF AUSTRALIAN FEDERATION.

and New South Wales never became members at all. Sir
Henry Parkes was in England when the Convention of
1883 adopted the scheme, and when he returned to New
South Wales joined forces with those who were opposed to
federation in any form. In 1881 Sir Henry Parkes had
been one of those who believed that the great thing was to
get a union of some sort as the foundation of a more
complete union in the future. In 1884 Sir Henry Parkes
believed that the Council would impede the federal
movement ; and his " unique body " had become such a
" ricketty institution " that to join it would be to wake a
" spectacle before the world which would cover the country
with ridicule."

The representatives of the colonies in the Council were
delegates nominated and not elected; until 1895^^ when the
representation of each colony was increased, they were
always Ministers or ministerial supporters. Save in a
few matters, the Legislative powers could be exercised
only on the initiative of the legislatures of the colonies.
Every power of the Council was restrained by the fact
that it could neither raise nor appropriate revenue; even
its own expenses had to be provided for in the budgets
of the colonies. Lord Derby, well aware of the diflSculty
of settling colonial contributions, even when the colonies
were ready to provide money, had urged that the Council
should have powers of expenditure ; but the colonies would
not hear of it. The power of the purse must lie in a body
chosen by popular election, and in such a body the equal
representation of communities of very unequal powers of
contribution would be impossible. Financial powers would
have involved the creation of an assembly in which the
colonies would have been represented according to their
population ; and the claims of equality of states would
have involved the establishment of a Second Chamber.
The expenditure of money would have required an
executive. But this would have been exactly that com-
plete federal union for which, according to the Convention
of 1883, the colonies were not yet ripe, and for which the

COLONIAL DEFENCE. 39

Federal Council was only to prepare the way. Sir Henry
Parkes was right when he said that the Council could not
by any mere process of expansion undertake the subject of
national defence ; those who would give a constitution to
a nation must build anew. Changing membership and the
hostility of New South Wales prevented the Council from
becoming an efficient instrument even for its limited pur-
poses. After 1895 the Conference of Premiers over-
shadowed the Council in dignity and importance, while
for co-operation in special matters — military, marine,
postal, and statistical — there were frequent conferences of
officials. The best that can be said of the Council —
but that is not a little — is that, far from exhibiting a
natural jealousy of schemes which involved its own
extinction, it did good service in fostering the cause
of national union.

The next step in the federal movement is connected with
the subject of defence. At the Colonial Conference held in
London in 1887, important conclusions were arrived at both
as to naval and military defence. In regard to the former,
an agreement was come to between the Imperial Govern-
ment and the Australasian Colonies whereby the latter
were to contribute the sum of £126,000 per annum
for the provision of the Australian Squadron. The
agreement was ratified by Acts of the Legislatures
of each of the colonies and by the Imperial Parliament
in the Imperial Defence Act, 1888. As to military
defence, it was agreed that there should be a periodical
inspection of the Australasian forces by a General Officer
of the Imperial Army. The further proceedings concerning
this inspection themselves offer an interesting illustration
of the futility of all attempts at concerted action by the
divided colonies. Immediately after the conference, a
correspondence began^ which soon developed the usual
differences of opinion, and Sir Henry Parkes on behalf of
New South Wales withdrew from the arrangement alto-
gether. At last, the Imperial Government undertook to

^ Victorian Parliamentary Papers, 1889, vol. iii., p. 605.

t

40 THE HISTORY OF AUSTRALIAN FEDERATION.

bear the cost of sending Major-General Edwards, the officer
commanding the forces in China, to report on the defences,
and in May 1889 the offer was accepted. The report was
presented in October 1889, and was virtually a recommen-
dation of the federation of the colonies for purposes of
defence, and as one incident of defence, of the establish-
ment of a common gauge for the railway system of
Australia in place of the existing three gauges by which
communication was impeded.

Sir Henry Parkes at once made the report the basis of a
propaganda, and while there is room for difference of
opinion as to where the balance would lie in taking account
of Sir Henry Parkes's activity in the matter of federation,
his efforts at this time to arouse public interest must be
accounted a great national service. He had difficulties to
encounter both in < his own and in other colonies. Victoria
was anxious that New South Wales should make trial of
the Federal Council ; but Sir Henry Parkes would have
none of it. Believing that the time was ripe for consoli-
dating the Australias into one, he invited each of the other
colonies to appoint through their Legislatures six represen-
tatives, who he suggested should be chosen equally from
both sides in political life. In the end he consented to a
conference, which should meet for purposes of preliminary
consultation merely; and on February 6th, 1890 a confer-
ence of the seven colonies met at Melbourne. The true
purpose of the conference was, in the words of a delegate
to " decide whether there is such a wave of public opinion
through these colonies that it has removed the question
from the mere sentimental airiness in which it has existed
for some years past, and has brought it into the region of
practical politics." It was moved by Sir Henry Parkes,
seconded by Mr. Alfred Deakin (Victoria), and unanimously
resolved that "the best interests and future prosperity of the
Australasian Colonies would be promoted by an early union
under the Crown, and that the time was come for the
union of these colonies under one Legislative and Executive
Government on principles just to the several colonies."

NATIONAL AUSTRALASIAN CONVENTION, 1891. 41

The members of the conference pledged themselves to
endeavour to induce their Legislatures to appoint dele-
gates to a National Australasian Convention, empowered to
consider and report upon an adequate scheme for a Federal
Constitution; and the conference resolved that such a
Convention should consist of not more than seven members
from each of the self-governing colonies and four from each
of the Crown Colonies. The Parliaments of the colonies
appointed their delegates, though the discussion in New
Zealand made it clear that that colony withdrew from
more than a friendly interest in the scheme. The National
Australasian Convention met at Sydney on March 2nd,
1891, and sat until April 9th. On March 18th the
following resolutions were, after exhaustive debate,
agreed to :

" That in order to establish and secure an enduring
foundation for the structure of a federal government,
the principles embodied in the resolutions following be
agreed to :

1. That the powers, and privileges, and territorial rights
of the several existing colonies shall remain intact except
in respect to such surrenders as may be agreed upon as
necessary and incidental to the power and authority of the
National Federal Government.

2. No new State shall be formed by separation from
another State, nor shall any State be formed by the
junction of two or more States or parts of States, without
the consent of the Legislatures of the States concerned, as
well as of the Federal Parliament.

3. That the trade and intercourse between the federated
colonies, whether by land carriage or by coastal navigation,
shall be absolutely free.

4. That the power and authority to impose customs
duties and duties of excise upon goods the subject of
customs duties and to offer bounties shall be exclusively
lodged in the Federal Government and Parliament, subject
,to such disposal of the revenues thence derived as shall be
agreed upon.

?

42 THE HISTORY OF AUSTRALIAN FEDERATION.

5. That the naval and military defence of Australia shall
be entrusted to federal forces under one command.

6. That provision shall be made in the Federal Con-
stitution which will enable each State to make such
amendments in its Constitution as may be necessary for
the purposes of the federation.

Subject to these and other necessary conditions, this
Convention approves of the framing of a federal constitu-
tion, which shall establish :

1. A parliament which shall consist of a senate, and a
house of representatives, the former consisting of an equal
number of members from each colony, to be elected by a
system which shall provide for the periodical retirement of
one third of the members, so securing to the body itself a
perpetual existence, combined with definite responsibility
to the electors, the latter to be elected by districts formed on
a population basis, and to possess the sole power of origin-
ating all bills appropriating revenue, or imposing taxation.

2. A judiciary consisting of a Federal Supreme Court,
which shall constitute a High Court of Appeal for
Australia.

3. An executive consisting of a Governor-General and
such persons as from time to time may be appointed as
his advisers.

The work of framing a constitution upon these lines
was delegated to three Committees to deal respectively
with constitutional functions, finance, and judiciary. The
deliberations of these Committees were finally put into
form by a Drafting Committee consisting of Sir Samuel
GriflBth, Mr. (now Mr. Justice) A. Inglis Clark (Tasmania),
Mr. Barton (New South Wales), and Mr. Kingston (South
Australia). The result was the " Draft of a Bill to con-
stitute the Commonwealth of Australia."

The preliminary discussions in 1890 had made it clear
that Sir Henry Parkes's plan of a Dominion of Australasia
on the model of the Dominion of Canada was impracti-
cable; and the scheme adopted followed in its main
outlines the Constitution of the United States. Impor-

THE DRAFT BILL OF 1891. 43

tant amendments in detail have been made in the scheme, ^
principally in the direction of democratizing the Consti- ^
tution;biit the Draft Bill of 1891 contains in substance ^
the Constitution which received the Koyal Assent in 1900 j-
and came into operation on January 1st, 1901.^ On the
motion of Sir Samuel Griffith the Convention recommended
that provision should be made by the Parliaments of
the several colonies for submitting for the approval of
the colonies respectively the Constitution adopted by the
Convention ; and it was further recommended that as soon
as the Constitution was accepted by three colonies the
Home Government should be requested to take the neces-
sary steps to put it into operation.

With so great an advance and with such fair prospects,
federation seemed now to be within reach. Sir Henry
Parkes took steps to carry out his part of the bargain
in New South Wales. But his Government was soon in
difficulties, and in order to placate the different sections of
its supporters was compelled to give federation a subsidiary
place in its programme. In October, 1891, the Parkes ^
Ministry went out of office, and though the new Ministry ^
included Mr. Edmund Barton, a prominent federalist, the *-
Prime Minister, Mr. Dibbs, if he were in favour of
union at all, desired unification rather than federation. *-
Victoria, South Australia, and Tasmania dealt with the *-
Bill in a tentative fashion ; the other colonies did "
nothing. All were in fact waiting for the signal from
New South Wales, and the signal did not come. Sir Henry
Parkes in despair urged that if the question were too big
for the Parliaments, " the Australian people should take
the matter into their own hands, and elect a Federal
Congress representing all the colonies and the whole
people." The next few years were years of financial *^

^ For a critical study of the Draft Bill of 1891 and a comparison with the
Canadian Constitution, see a Paper by Sir John Bourinot in Transactions
of the Royal Society of Canada, 2nd Series, vol. i., sec. 2 p. 3 (1895). For
a consideration of the differences between the Bill of 1891 and the Consti-
tution as it left the Adelaide Convention in 1897, see an article by the
author in the National Review, vol. xxxi., p. 269.

44 THE HISTORY OF AUSTRALIAN FEDERATION.

crisis, in which Governments had more than sufficient to
do, first in staving off disaster, and next in " balancing the
ledger " ; and though the crisis itself had illustrated the
dangers of division, Sir George Dibbs's proposal in 1894 for
the \mification of New South Wales and Victoria received
^ scant attention. The country, however, was beginning to
take Sir Henry Parkes's advice, and a popular movement was
"* organized which, if it did not take federation out of the
hands of Parliament, at least supplied a force with which
Parliament must reckon. The Australian Natives' Associa-
tion interested itsef in the cause from its first demonstration
in 1884, and from 1893 federation leagues were formed in
V . various parts of Australia. At the end of 1893 a conference
v4of delegates from the various organizations met at Corowa,
jand on the motion of Dr. (now Sir John) Quick (Victoria)
Adopted a scheme for the popular election of a Federal Con-
4^ention which should frame a Federal Constitution to be
Submitted to the electors, and, if approved by two or more
i colonies, to be forwarded to the Imperial Government. The
"* next step was taken at the Conference of Premiers held at
"^Hobart in January, 1895. The Premier of New South
Wales (Mr. E,eid) submitted, and the Conference adopted,
the following series of resolutions:

1. That this Conference regards federation as the great
and pressing question of Australasian politics.

2. That a Convention consisting of ten representatives of
each colony, directly chosen by the electors, be charged
with the duty of framing a Federal Constitution.

3. That the Constitution so framed be submitted to the
electors for acceptance or rejection by a direct vote.

4. That such Constitution, if accepted by the electors of
three or more colonies, be transmitted to the Queen by an
address from the Parliaments of those colonies praying for
the necessary legislative enactment.

5. That a Bill be submitted to the Parliament of each
colony for the purpose of giving effect to the foregoing
resolutions.

Mr. (now Sir George) Turner (Victoria) and Mr. Kingston

FEDERAL ENABLING BILL. 45

drafted a Federal Enabling Bill, which was in its main *^
features passed by New South Wales, Victoria, South ^
Australia, and Tasmania, and with an important difference *^
by Western Australia. In four of the colonies a minimum
vote for the Constitution was required — 50,000 (afterwards
raised to 80,000) in New South Wales, 50,000 in Victoria,
and 6000 in Tasmania and Western Australia; subject to
this, a bare majority of votes cast was sufficient to declare
the consent of the colony. In Western Australia the ten
members of the Convention were to be elected not by
direct popular vote, but by the members of both Houses of
Parliament sitting together and voting by ballot. In
Queensland the Bill was lost in the first instance through
the disagreement of the Houses as to the mode of election.
The divergent interests and aims of the northern, central,
and southern parts of the colony (for the reconciliation of
which a sectional federation of the Colony of Queensland
has more than once been proposed), and a general lack of
knowledge on, or interest in, federation, both among the
politicians and the scattered population of her vast terri-
tory, were the main causes that nothing was done, and the
Convention met and finished its labours without the assist-
ance of the northern colony.

In March, 1897,^ the Convention elections took place.*^
There was everywhere a large field of candidates, and the
contests in the four colonies where the election was by
popular vote did a good deal to stimulate interest and to
dispel the illusions which abounded on the subject. In «-
every colony the delegation was fairly representative in the *^
sense that the candidates elected w^ere well known in the *^
Parliamentary life of the colonies.'^

^ For a detailed history of tlie federal movement from this time, the
reader is referred to Quick and Garran's Annotated Constitution of the
A ustralian Gommonivealth.

^Of old federal leaders Sir Henry Parkes was dead, Sir Samuel Griffith
had become Chief Justice of Queensland, and Mr. A. I. Clark (Tasmania)
was unable by reason of health to become a candidate. Mr. Barton,
Mr. Alfred Deakin, and Mr. Kingston were, however, members of the
Convention.

46 THE HISTORY OF AUSTRALIAN FEDERATION.

The number and percentage of the electors voting in the
several colonies were:^

Victoria, . . . 103,932 or 435 per cent.

New South Wales, . 142,667 or 51-25 „

South Australia, . . 42,738 or 30-9 „

Tasmania, . . . 7,582 or 25-0 „

. On March 22nd, 1897, the Convention held its first
session in Adelaide. Mr. Kingston, Premier of South
Australia, was elected President, and Mr. Barton, who had
received a larger number of votes at the polls than any-
other member, was acclaimed leader of the Convention.
The proceedings closely followed the order of 1891. A-
series of resolutions was submitted and debated. These
affirmed, " That, in order to enlarge the powers of self-
government of the people of Australasia, it is desirable to
create a Federal Government which shall exercise authority
throughout the Federated Colonies," subject to certain
principal conditions which were substantially identical with
7 those which were the basis of the Bill of 1891. It was
significant, however, that the reference to the " Senate " or
" States Assembly " was more guarded than before ; there
was nothing said of equal representation; the States
Assembly was to consist of " representatives of each colony
to hold office for such periods, and be chosen in such
manner as will best secure to that Chamber a perpetual
existence combined with definite responsibility to the

J people of the State which shall have chosen them." By
common consent the Draft Bill of 1891 was taken as the
foundation of the work of the Convention.

Three Committees were appointed as before, and their

! work was submitted to a Drafting Committee consisting of
Mr. Barton, Mr. R. E. O'Connor (N.S.W.), and Sir John
Downer (South Australia). The character of the debates
was significant that the Convention " meant business."
There was the sharp clash of interests; and the struggle
between large and small States over the financial powers of
the Senate, the contest over the rights in the rivers, railway
^ Victorian Year Book, 1895-8, section 1.

FEDERAL CONVENTION OF 1897-8. 47

rates, and the adjustment of financial relations indicated
that there were great material interests at stake. On
April 23rd the first consideration of the Bill was concluded,
not without clear indications that there were some matters ^
which must be revised. The Convention then adjourned ;
and in accordance with arrangement, the Bill was remitted
to the various Parliaments for consideration and for the/-
suggestion of amendments. The second session of the Con-
vention began at Sydney on September 2nd and ended on >
September 24th. The financial questions were sent to a ^ ;
committee. A large number of amendments were con- ' *r
sidered, for the proceedings in the Legislatures of New ^ '
South Wales and Victoria had indicated that the larger ^ i
colonies were in favour of some concessions to the claims of «-
population. There were keen debates on the Constitution -
and powers of the Senate, and various ingenious expedients^
were suggested for the prevention of " dead-locks." The "^
third and final session of the Convention began at Mel- " ■
bourne on January 20th, 1898. There the Financial *.
Committee brought up its report, and salvation was found ' ;
in the " Braddon Clause." The duels between New South ";
Wales and South Australia on the claims of irrigation and "
navigation in respect of the rivers, and between New South '
Wales and Victoria as to railway rates, were fought out at -
length and with great determination. A solution for dead- -
locks was found at last, and a jaded Convention gave its -
assent to clauses affecting the appeal to the Queen in -
Council, which were then and later the subject of much -
misunderstanding. The Bill was then finally revised by -^
the Drafting Committee, which had remained in existence '
throughout and exercised the most scrupulous care over the *"
formal expression of the Constitution. On March 16th the'
Bill was adopted by the Convention ; on March l7th, after-
calling for cheers for the Queen and for Australia, the -
President declared the proceedings of the Convention closed.
The Referendum was fixed for June 3rd by New South
Wales, Victoria, and Tasmania, and for June 4th by South
Australia. In neither Queensland nor Western Australia

48 THE HISTORY OF AUSTRALIAN FEDERATION.

was any move made at this time. It was soon apparent
that the opposition to the measure in New South Wales
was very serious. First, there was the " democratic '*
opposition, which was directed to the equality of repre-
sentation in the Senate, the powers of the Senate, and the
rigidity of the Constitution. Secondly, there was dis-
satisfaction with the financial arrangements, which, it was
contended, would throw upon New South Wales a heavy
burden of taxation to meet the necessities of Tasmania and
Western Australia. Thirdly, there was the fear of the
people of Sydney that federation might endanger the
commercial position of that city by its inevitable variation
of the fiscal policy of the colony, and by enabling Melbourne
to " capture " New South Wales trafi^ic. Finally, the old
sore of the capital was re-opened, and a claim was made
that either Sydney should be made the seat of Government,
or at any rate that Melbourne should not. When at last a
vote was taken it was found that, although there was a
small majority for the Bill, the statutory number of votes
I, (80,000) had not been cast in its favour. In Victoria and
v^Tasmania the Bill was carried by a majority of five to one ;
k and in South Australia by two to one. The voting was as
follows : ^

Percentage of

Voters to

Electors on

For.

Against.

Majority.

the Roll.

New South Wales,

71,595

66,228

5,367

49-88

Victoria,

] 00,520

22,099

78,421

48-94

Tasmania,

11,797

2,716

9,081

46-5

South Australia, .

35,800

17,320

18,480

39-44

The number of electors voting shows some improvement
on the election of members of the Convention ; but the
increase is far short of what might have been expected
from the amount of attention which had in the meantime
been given to the subject in the press and on the platform.
It should be added in explanation of the small vote in
South Australia that when the vote was taken in that
colony the failure in New South W^ales was known.
1 Victorian Year Book, 1895-98, p. 39.

CONFERENCE OF PREMIERS. 49

As three colonies had accepted the Bill , it was within the
terms of the Premiers' agreement that they should address
the Crown to have the Bill enacted. But federation with-
out New South Wales was not a matter of practical politics,
and it was everywhere recognized that no effort should be
spared to include all the colonies of Australia. After a
general election in New South Wales, the Premier (Mr.
Keid), who had been the principal critic of the Draft Bill
of 1891 and the Bill of 1897-98, presented, and the Legisla-
tive Assembly adopted with some amendments, the modifi-
cations in the Constitution required by New South Wales.
A conference of Premiers was held in Melbourne on
29th January, 1899, and the six colonies were represented,
the re-appearance of Queensland being hailed as a pledge of
adhesion to the federal cause. The conference agreed to
the following 'amendments: (1) The substitution of an
absolute majority of members for a three-fifths majority at
the joint sitting of the Houses on the occasion of " dead-
locks"; (2) the " Braddon Clause " (sec. 87) to be limited to
ten years and " until the Parliament otherwise provides";
(3) the insertion of a clause enabling the Parliament to
grant financial assistance to necessitous States ; (4) a further
guarantee of territorial rights and a special provision relat-
ing to Queensland ; (5) the application of the " dead-lock "
provisions to the amendment of the Constitution. The
vexed question of the capital was settled by compromise —
it was to be in New South Wales, but not within 100 miles
of Sydney, and until the seat of Government should be
ready the Parliament was to meet at Melbourne.

Arrangements were at once made for a second Eeferen-
dum. In New South Wales questions of constitutional
preference, which had played an important part in the
earlier campaign, went into the background, and the attack
was directed against the financial arrangements and the
compromise on the capital. But the conditions of the fight
were altered by the fact that Mr. Reid was now in favour
of the Bill ; and it was his influence that carried the day in
favour of federation. On June 20, 1899, the New South

■V

50 THE HISTORY OF AUSTRALIAN FEDERATION.

Wales poll was taken, and 107,420 votes were cast for and
82,741 against the Bill ; majority, 24,679. The poll in the
other colomes was :

nq^ ^- i^ For. Against.

- Victoria, . . . 152,653 9,805

•- S. Australia, . . . 65,990 17,053

<- Tasmania^ . . 13,437 791

'^ In September a vote was taken in Queensland, and there

was a majority of 7492 in favour of the Bill — For, 38,488 ;
against, 30,996.
\ ^ Western Australia still stood aloof, in the hope of further

concessions in the matter of customs duties and the trans-
continental railway, and it was not until after the Bill had
received the Royal Assent that a poll was taken in that
colony. The voting was — For, 44,800 ; against, 19,691 ;
majority, 25,109.

^ Addresses to the Crown praying for the enactment of
'-the Bill were adopted in New South Wales, Victoria,
''Tasmania, South Australia, and Queensland; and the ad-
dresses and the Bill were transmitted to England.
" On the invitation of the Secretary of State, delegates
•- representing the colonies which had adopted the Bill pro-
*- ceeded to England to confer with the officials of the
^ Colonial Office and the Law Officers in England. The
delegation consisted of Mr. Barton (New South Wales);
Mr. Deakin (Victoria); Mr. Kingston (South Australia);
Mr. Dickson (Queensland) ; and Sir Philip Fysh (Tasmania).
Western Australia, which was anxious to secure amend-
ments to meet the special circumstances of the colony, was
separately represented by Mr. Parker, Q.C.; New Zealand,
which had held aloof from federal politics since 1891, made
representations through the Agent General, Mr. W. P.
Reeves, that provision ought to be made whereby New
Zealand, which under the Bill might become a State, should
be permitted to come in whenever she pleased on the same
terms as an Original State; that New Zealand and the
Commonwealth might make common arrangements for
defence ; and that there should be a right of appeal from
New Zealand to the High Court of Australia.

HOME RECEPTION OF COMMONWEALTH BILL. 51

Western Australia and New Zealand lodged memoranda
containing their case; and the observations of the Law
Officers on the Bill were laid before the Delegates.^ The
Delegates presented a counter memorandum dated March
23rd, 1900, and thereafter conferences and negotiations
followed lasting until after the introduction of the Bill to
Parliament. Some minor amendments in the covering clauses
of the Bill were agreed to ; and the question of the appeal
to the Queen in Council became substantially the single
matter in dispute. The Constitution (section 74) provided
that "no appeal should be permitted to the Queen in
Council in any matter involving the interpretation of the
Constitution or of the Constitution of a State unless the
public interests of some part of Her Majesty's Dominions,
other than the Commonwealth or a State are involved." It
was also provided that, save as thus provided, the pre-
rogative to hear appeals as of grace should be unimpaired,
but that the Parliament of the Commonwealth might make
laws limiting the matters in which leave might be asked.
The objections to these provisions were obvious. The
questions withdrawn from the Queen in Council were
precisely those on which, in the words of the Law Officers,
"the Queen in Council has been able to render most
valuable service to the administration of law in the
colonies, and questions of this kind, which may sometimes
involve a good deal of local feeling, are the last that should
be withdrawn from a Tribunal of appeal, with regard to
which there could not be even a suspicion of pre-pos-
session." The provisions of the section safeguarding the
appeal where the " public interests " of other parts of Her
Majesty's Dominions were concerned, were vague and
uncertain ; and the Commonwealth was receiving extended
powers of legislation which might well affect places and
interests outside Australia. Finally, the Law Officers urged
that " the retention of the prerogative to allow an appeal

^ For the proceedings of the London Conference, see Papers relating to
the Federaiion of the Australian Colonies, published in the Parliamentary
Papers in England and in the several colonies.

52 THE HISTORY OF AUSTRALIAN FEDERATION.

to Her Majesty in Council would accomplish the great
desire of Her Majesty's subjects both in England and
Australia, that the bonds which now unite them may be
strengthened rather than severed, and by ensuring uniform
interpretation of the law throughout the Empire, facilitate
that unity of action for the common interests which will
lead to a real federation of the Empire."

The delegates held that the clause was part of the
federal agreement which had twice received the approval
of the people of the colonies; that an amendment would
make the Constitution no longer the very instrument
which the people had accepted, and cited the declaration of
Mr. Reid that " there will be no safety or security for
Australian union until it is known that the Bill that
Australia has drafted for the Imperial Parliament to pass
word for word is passed by that august Tribunal word
for word." Finally, they urged that while the real links
of Empire were the consciousness of kinship and a common
sense of duty, the pride of race and history, the cause of
Imperial unity would not be aided by putting in apparent
conflict the Federation of Australia and Imperial Feder-
ation.

In the later negotiations the Queensland delegate sepa-
rated himself from his colleagues, and public opinion in
Australia was strengthening the hands of the Imperial
authorities. A conference of Premiers in Melbourne, after
urging that the clause as drafted could not work injuriously
to the interests of the Empire, observed that as the only
alternatives seemed to be an amendment of the Bill or
postponement of its consideration, they did not hesitate
to say " that the latter course would be much more objec-
tionable to Australians generally even than the former."
On May 14th Mr. Chamberlain introduced the Bill into
the House of Commons, and after some further negotiations
an amendment was agreed upon.^ The debates in both
Houses were marked by a cordial welcome of the Bill from
all political parties, and the only criticisms heard were of
^ See chapter xv.

GENERAL CONDITIONS. 53

the compromise and of the steps taken by the Colonial
Secretary to ascertain Australian opinion on the subject
of appeals to the Queen in Council. The Bill received^
the Royal Assent on July 9th, 1900.

Rarely has any group of States been so signally marked
out by nature for political union as are the six colonies of
Australia. Though new countries, whose whole life lies
within a period characterized by great movements of the
population of the old world, there is less diversity of
nationality amongst them than is to be found in most
European countries. Religious differences there are in
plenty, but sectarian strife, though bitter enough, affects
or interests but few. The State has been strictly un-
sectarian, and there has been no party of irreconcilables.
The population has long been sufficient to enable a united
Australia to stand with the nations of the old world ; it is
at present almost the same as the population of the United
States and the British North American Provinces at the
time of their respective unions. In distribution of popu-
lation, the colonies satisfy the condition of union laid down
by Mill, " that there should not be any one State so much
more powerful than the rest as to be capable of vying in
strength with many of them combined," and again we may
glance at the successful union of the Canadian Provinces,
where the numbers of Upper and Lower Canada bore much
the same relation to each other and the other provinces as
do the numbers of New South Wales and Victoria to each
other and the other Australian Colonies. The six colonies
are the sole occupants of a continent and its adjacent
islands with an extent of territory little less than that of
Europe. The fears of foreign occupation, once common,
have now been dispelled. There is no " No Man's Land " ;
the territories of the colonies are co-terminous ; every
colony on the mainland except Western Australia touches
the borders of two of her sisters ; South Australia touches
four. The colonial boundaries are generally no more than
conventional lines ; and at the present day the judge who
goes on circuit from Sydney to Broken Hill travels via

54 THE HISTORY OF AUSTRALIAN FEDERATION.

Melbourne and Adelaide, while a large part of New South
Wales, the rich " Riverina," has its natural port at Mel-
bourne. Every colony has an extensive coast line well
furnished with harbours unaffected by the seasons. The
coast districts are the places of closest settlement; and
from the first the sea has been the great highway of
colonial traffic, so that the difficulties of internal communi-
cation, and notably the absence of great navigable rivers,
have not prevented intercourse between the centres of
population. In all these respects the Australian Colonies
greatly differed from the British Provinces of North
America, which fell into four distinct groups, sharply
severed from each other by natural obstacles, and finding
their access to the world by foreign outlets.'^ The dis-
tances in Australia, it is true, are great — from Brisbane
to King George's Sound is 2500 miles. But distance is a
relative thing; to men who have made a journey of 12,000
miles and perhaps spent four months in the passage, 2000
miles traversable in little over a week is no more than
neighbourhood. That Australians regard distance on the
grand scale has been more than once proved to British
statesmen. There is nothing in the life or occupations of
the people to cause deep divergence among the colonies.
The familiar separation is between town and country, not
between colony and colony, and while the fact that a great
part of Australia is within the tropics would naturally
tend to conditions of life there different from those in
the temperate parts, there is no policy to which the
colonies are more devoted than "a white Australia," with
all that that implies. To the solution of the same prob-
lems of government — the holding of the public lands, the
regulation of mining, fiscal policy, the relations of the
state to religion, national education, and a host of others
— the colonies have brought the same stock of political

^" These obstacles are to be surmounted, nature is to be vanquished,
and the commercial outlet of each territory placed by her to the south is
to be wrested round to the east and west by lines of political railways
constructed at enormous cost to the Canadian people " (Mr. Goldwin-
Smith in the Contemporary Review, 1884).

GENERAL CONDITIONS. 55

ideas. They brought with them the same common law ;
they have received and developed similar institutions.

In these favourable conditions it may be wondered why
union has been so long delayed. The wonder should rather
be that it has now been accomplished. Writing after the
Convention of 1891, Professor Jenks said:^ "If the Aus-
tralian Colonies accomplish federation under existing
circumstances, they will succeed in a political experiment
for which there is practically no precedent in modern
times. All through modem history there has been but one
determining cause of political union between communities
— physical force or the fear of physical force. In Switzer-
land, Germany, Austro-Hungary, Sweden and Norway, the
United States of America, Canada, Mexico, Central America,
the • tale lias been always the same. No community has
consented to link its fortunes with the fortunes of another,
save when instigated by fear of violence from that other or
a third power. Many attempts have been made on other
grounds, many other excellent motives have suggested
themselves to thinking men. But the determining cause,
the dead-lift over the hill, has always been force or the fear
of it." Common subjection to the Crown went far to satisfy
such desire for political union as there was. The Provinces
of Canada, separated and remote from each other, had a
powerful neighbour from whose territory had proceeded
more than one act of hostility, who made no secret of her
resentment at the existence of their " political system " on
the American Continent, and who in 1865 was flushed with
military triumphs achieved for the cause of American unity
in the teeth of what she regarded as the active hostility of
England. Australia has had no such dangerous neigh-
bour. Partnership in the British Empire, which was in
Canada a cause of offence, has been the security of
Australia. Since the development of anything like a
national life in Australia, the British Empire has been at
peace, so far at any rate as world politics are concerned.
Protected by the shield of Empire from external dangers,

^ Government of Victoria, p. 373.

66 THE HISTORY OF AUSTRALIAN FEDERATION.

the colonies have rarely been reminded that they were
dependencies, and in general, if they have had ground to
complain of the mother country, it has been on the score of
indifference to the claims of Empire rather than any
pressure of lordship. Within their own territories the
work of pioneers has been carried on without fear of a
hostile aboriginal population. The absence of national and
religious feuds, such as divided Upper and Lower Canada,
\ has been already referred to. If the sea has given every
colony means]of communication with her neighbours, it has
also opened to her the trade of the world. Unlike the
Eiver Provinces of Canada, dependent for half the year on
the licence of a foreign and often unfriendly Power for
their external trade, the development of internal communi-
cations has not been matter of life or death to any
Australian Colony, though in the latter stages of federal
movement the attitude of Western Australia in regard to
the projected Transcontinental Railway has recalled, as it
has perhaps been suggested by, the story of Canadian
Confederation.

Australia has been without all but one of the great
causes which were instrumental in bringing about the
Confederation of 1867. Just as the North American
Provinces complained that the Foreign Office was disposed
to sacrifice Canadian interests, partly from ignorance of
local conditions, and partly for the sake of a good under-
standing with the United States, so the Australian Colonies
complain that Australian interests in the Pacific are too
lightly regarded, and, if not given away, are bargained
away for a compensation which may have some value for
other parts of the Empire, but is no direct advantage to
Australia.

The material prosperity of the colonies, and at times
their phenomenal wealth, has tended to prevent the
growth of that " healthy discontent " which is the condition
of political as well as economic progress. In 1890 it was
Sir Henry Parkes's boast : " There is no one so wealthy as
we." Yet a statesman of Sir Henry Parkes's acumen might

GENERAL CONDITIONS. 57

have known that that was not an argument for changing
•the institutions and the policies to which politicians were
never tired of reminding their constituents this happy state
of things was due. It was in fact the lean years which
gave Australia the serious call to set her house in order.

New colonies, whatever the conditions of their foundation
or their form of government, are less states in the Old
World sense than trading and industrial communities ;
their citizenship recalls membership of the " regulated
companies" or even the stockholding in the joint-stock
companies which have played so great a part in our
colonial history. With rare exceptions "politics" means
public works, the tariff, or the conditions of holding and
working the lands and minerals of the state. The develop-
ment of the resources of the country is the chief concern of
the Government, and the task is one in which the Australian
Colonies have been no laggards. These very material
interests develop a special kind of patriotism. Every
inhabitant of a thinly populated country feels that its
territory is an asset in which he has an appreciable share ;
and the once common distinction in older lands between
the man with a stake in the country and the man who has
not is meaningless in colonial politics. Every neighbouring
colony is a rival concern, on whose doings the shrewd man
of business must keep a sharp look out. If there is to be a
partnership, each must make the best bargain he can. If
your neighbour has a small territory and you have a large
one, if his estate wants water and you control the supply, if
your railways pay and his don't, you must protect your
interests and must be well assured of advantages to your-
self before you agree to join him.

The absence of urgent external aiFairs in Australian
politics favoured the growth of that rivalry and bitterness
which are common to small contiguous communities. This
rivalry and bitterness were intensified by the concentration
of population in the capitals. Sydney and Adelaide contain
more than one-third of the population of their respective
colonies, and in 1891 one third of the population of Victoria

58 THE HISTORY OF AUSTRALIAN FEDERATION.

was in Melbourne. The political influence of a capital is
more than proportionate to its population, and the natural
jealousy of Sydney and Melbourne as rival ports has
assumed a national character the more serious because of
the scope of Governmental action. The railway wars of
Governments are more far-reaching in their effects than the
rivalries of companies, for Governments can employ more
weapons in the fight.^

In New South Wales and Victoria the guiding principle
of railway policy has been to secure its " legitimate traffic "
for Sydney and Melbourne respectively. The claim of each
of the two great cities to be the seat of government in any
federation has been an obstacle to union since Melbourne
put forward its claim in 1852 and added insult to injury by
urging the special advantage of " a safe and capacious
harbour."- But it may be doubted whether the competition

^Cf. The Queensland Railway Border Tax Act, 1893, which contains an
interesting recital of typical wrongs : " Whereas large sums of money have
been expended by the Government in extending railway communication
with the southern and western districts of the colony for the purpose of
promoting agricultural and pastoral settlement in those districts ; and
whereas large sums of money have at various times been expended by the
Government in harbour and river improvements for the purpose of increas-
ing the shipping facilities of the colony ; and whereas a large sum of money
has been and is being anmially paid by the Government in subsidizing
direct steam communication with Europe, primarily with the object of
facilitating the speedy and direct shipment of goods and produce therefrom
and thereto ; and whereas it has been ascertained that differential rates on
the railway lines of the neighbouring colonies have been promulgated and
otherwise arranged for, which have had and are continuing to have the
effect of diverting the traffic which ought legitimately to be conveyed over
the railway lines of this colony, thereby entailing a considerable loss of
railway revenue ; and whereas it is considered desirable to prevent as far
as practicable this diversion of traffic" — because these things were so,
every ton of station produce crossing the border was to pay a railway tax
of £2 lOs. ; every person who attempted to evade the tax was liable to a
penalty of £100, and everything animate or inanimate concerned in the
adventure, teams, drays, and produce was declared forfeit. In such
circumstances, one does not wonder that the construction of a railway
by one colony to the borders of her neighbour's territory often provoked
feelings similar to those called forth in some quarters by the project of
the Channel Tunnel.

2 Votes and Proceedings, Legislative Council, 1852, p. 197.

GENERAL CONDITIONS. 59

for the capital has been the most serious incident in the
jealousy of the two cities. Speaking of the city states of
the Middle Ages, Freeman says : " The highest point which
human hatred can reach has commonly been found in the
local antipathy between neighbouring cities." In more
than one sense the colonies have been city states.

A great obstacle to federal union has been the fact
that with the exception of the tariff, the subjects calling for
federal action have been those which in Australia attract
little popular attention. The need for union has been
apparent mainly to those who have been responsible for the
administration of affairs, and it has been some compensation
for the inconveniences which have attended the rapid
succession of colonial ministries that this class has been
large. The legislatures have been apathetic ; even when
matters had advanced so far that the Federal Council Bill
was under discussion, thin attendances in the House bore
witness to the lack of interest in New South Wales,
Victoria, and South Australia. A cynical public readily
referred the zeal of a " professional politician " to the billet-
hunting nature of his class. For the rest, the description of
public opinion in New South Wales in 1884 by W. B.
Dalley — himself no enthusiast for federation — though
intended by way of contrast to Victoria, where "for some
time there had been a strong public opinion in its favour
which her statesmen merely expressed," may serve as a
description of the public attitude throughout Australia —
some thought it of doubtful ultimate advantage, and an
immediate attempt to accomplish it dangerously premature ;
those who were in favour of it differed as to ways and
means; and, finally, there was "a large party, as in all
national questions, who give the matter little or no con-
sideration at all, is influenced more easily by a cry than by
an argument, and which is consequently disposed to regard
the eagerness and activity of other colonies as signs of
peril to the interests of their own." There were those who
feared that Australian federation meant separation ; there
were others who saw in the anxiety of the Home Govern-

m THE HISTORY OF AUSTRALIAN FEDERATION.

nient for federation, a design to prepare the way for an
Imperial Federation, which to them meant the sacrifice of
self-government. Finally, the advent of the Labour Party
since 1890 provided an organized body of opinion pledged
to resist all schemes which " did nothing for the people " ;
and the members of this party, with some exceptions who
with great courage and at some sacrifice separated them-
selves from their fellows, were opposed to every practicable
federal scheme.

Amid these difficulties — the greatest of them all was
indifference — and the great cleavage in fiscal policy, the
federal movement had to make its way. The financial
disasters awakened a sense of sympathy, and the burden of
the common trouble was necessarily shared. In regard to
the tariff* a modus vivendi became possible, through the
acknowledged necessity for developing the intercolonial
trade. The growth in the proportion of " native born " to
the whole population, the existence of Australian questions
and the untiring zeal of a band of enthusiasts in each
colony have created a sentiment sufficiently strong to serve
as an impulse to action. The votes cast at the first Refer-
endum were an improvement on those cast at the election
of the federal convention, and the second Referendum
marks an advance in popular interest upon the first. It is
easy to point to the fact, that at the convention election
only from 25 to 51 per cent, of the electors took the trouble
to vote, at the first Referendum only from 40 to 50 per
cent., and at the second Referendum only 36 to 67 per cent.,
as compared with from 50 to 70 per cent, at general
elections presenting no burning national question. But it
is hard indeed for any single public question to compete
with the varied attractions of a general election. Local
wants are the matters of first consideration, and the
member, no matter how distinguished his past services or
present position, must never cease to be the parliamentary
agent of his constituency or he will soon cease to be a
member. That this is so is due not to the baseness of
members or constituency. In a country like Australia,

GENERAL CONDITIONS. 61

where the central government has functions which else-
where are carried out by local agencies or by private
enterprise, there must be someone to do the business of the
constituency with the central government ; and the satis-
faction of local wants may well mean the difference
between prosperity and adversity. After these, there is in
a general election, the personal element — the contest in
the constituency between two or more known men — and
the stimulus of the personal canvass, which counts for so
much; more remotely, there is the knowledge that on the
result of the election depends the fate of the Ministers.
It is " men not measures " that in ordinary times give to
politics their interest for the mass of mankind. With the
local and the personal element eliminated, it is a tribute to
the efforts of the workers on both sides that at the second
Referendum 583,865 of the 983,486 electors recorded their
votes, and when we observe that 422,788 votes were cast
for the Bill and only 161,077 against, we see that it was no
mere form which declared that the people of the colonies
had agreed to unite. The federation of Australia was a
popular act, an expression of the free will of the people of
every part of it, and therein, as in some other respects, it
differs in a striking manner from the federation of the
United States, of Canada, and of Germany.

CHAPTER III.

THE NATUEE AND AUTHORITY OF THE
FEDERAL COMMONWEALTH.

On September 17th, 1900, the Queen by Proclamation
declared that the people of the colonies of New South
Wales, Tasmania, Victoria, Queensland and Western
Australia, and the Province of South Australia should be
united in a Federal Commonwealth under the name of
" The Commonwealth of Australia " ; and on January 1st,
1901, the day appointed by the Proclamation, the Common-
wealth became established and the Constitution of the
Commonwealth took effect, in accordance with sections iii.
and iv. of an Act of the Imperial Parliament known as the
Commonwealth of Australia Constitution Act, 1900 (63 and
64 Vict., c. 12). The preamble of the Act recites the
agreement of the people of the colonies "to unite in
one indissoluble Federal Commonwealth under the Crown
of the United Kingdom of Great Britain and Ireland and
under the Constitution hereby established." The enact-
ing part of the Act consists of nine sections, known
as the " covering clauses," and of these section ix. con-
tains the Constitution. Substantially the Act falls into
two parts, of which the first eight sections and the
introductory words of section ix. have the ordinary
character of an Imperial Act and are unalterable save
by the Imperial Parliament; while the second part
consists of " The Constitution" in 128 clauses, and is made

COMMONWEALTH AND STATE. 63

alterable by the Commonwealth. (Constitution, section
128.)

In addition to conferring the power to establish the
Commonwealth, the covering clauses prepare the ground by
(section vii.) repealing the Federal Council of Australasia
Act, 1885, and (section viii.) providing that the Colonial
Boundaries Act, 1895, shall no longer apply to any colony
which has become a State of the Commonwealth, but that for
the purposes of the Act the Commonwealth shall be taken
to be a self-governing colony. Section ii. enacts that pro-
visions in the Act referring to the Queen shall extend to
her successors in the sovereignty of the United Kingdom ;
and section v. deals with the operation and binding force
of the Act and defines the operation of laws made by the
Parliament of the Commonwealth under the Constitution.
Section vi. defines the leading terms of the Act.

It is one of the hindrances of political study that more
than in most branches of knowledge we have to work with
terms which, forming part of the popular language, are full
of the vagueness of popular notions ; they are employed
with no single meaning, and are not susceptible of exact
definition. The terms which describe the various unions of
States share to the full this disadvantage, and though their
ambiguity may be in some cases no more than an incon-
venience, in others they are an impediment to clear
thinking, and constitute a real and substantial evil.

Commonwealth and State. — As to "Commonwealth,"
the Act does no more than explain that "the Common-
wealth shall mean the Commonwealth of Australia as
established under' this Act." But it introduces the term
" State " as the designation of " such of the colonies (which
includes ' province ') of New South Wales, New Zealand,
Queensland, Tasmania, Victoria, Western Australia, and
South Australia, including the northern territory of South
Australia, as for the time being are parts of the Common-
wealth, and such colonies or territories as may be admitted
into or established by the Commonwealth as States " ; " and
each of such parts of the Commonwealth shall be called a

64 NATURE OF FEDERAL COMMONWEALTH.

* State.' " The enumeration of the colonies eligible in the
first instance to become members of the Commonwealth is
a matter of political significance. It includes none but
"settlement" colonies, which have a common civilization,
and which have all had a sufiicient training in self-
government. Fiji is a member of the "Australasian group"
of colonies, as detined by more than one Act of Parliament,
and she was a member of the Federal Council of Australasia.
But the islands of the Pacific, whatever their importance,
could hardly be associated as parts of a democratic govern-
ment ; and their organic relation with the Commonwealth,
if it be established, will be that of dependents rather than
members.

The term " Commonwealth " and the term " State " are
both ambiguous in themselves, and are frequently used
with implications and inferences that create further
confusion. In the Australian Constitution the term
" Commonwealth " describes the whole political organism,
the term " State " the part ; but in Mr. Burgess's Political
Science and Constitutional Law — a work that was
frequently referred to in the debates on the Constitution,
and will be an important aid to its elucidation — the terms
are reversed in the case of the United States, as the author
found himself bound in defiance of the Constitution to
assign the term " state " to its ordinary use amongst
publicists, to describe the sovereign organism, and there-
fore had to find some other term to designate the part. I
shall endeavour to mark the distinct uses of this term by
writing "state" in the juristic sense with a small s, and
" State " as used in the American Constitution and in this
Constitution with a capital S.

The name "Commonwealth of Australia" has been
vigorously attacked upon several grounds. In the firsi
place, it has been contended that it is a break in uni-
formity ; that Australia should have followed Canada,
and become a "Dominion," if it did not assume the title
proposed for Canada but rejected in deference to the
susceptibilities of the United States — '' Kingdom." It is

COMMONWEALTH. 65

enough perhaps to say here that the union of the Australian
Colonies differs fundamentally from the union of the
Provinces of Canada, and that the name Dominion has
been associated for too long with features which Australia
did not desire to copy. As to the term Kingdom, it must
be remembered that the present union took shape in 1891
when patriotism had hardly begun to express itself in the
passionate loyalty of to-day. The " Kingdom of Australia "
would indeed be acceptable to none; one class would
see in it a menace to democratic institutions, another would
find in the creation of a " distinct dominion " a suggestion
of dismemberment of the Empire. The name "Common-
wealth of Australia " does not and did not in 1891 indicate
a leaning to separation or republicanism. It was adopted
by the Constitutional Committee in 1891 on the suggestion
of Sir Henry Parkes, whose fancy led him to pay his
tribute of admiration to the statesmen of the " Common-
wealth Period." Perhaps if this origin had been better
known, the name would have met with more opposition.
Commonly the title was associated with Mr. Bryce's
American GoTriTnonwealth, first published in 1888, the
great source of knowledge as to the working of federal
government amongst English speaking people. The term
passed without much notice into the popular discussion
of federation, and having thus taken root was adopted
almost as of course.

The name " Commonwealth " is not without ambiguity
in the Act itself. The habit of identifying a colony with
its government has not unnaturally led to the use of the
term " Commonwealth," where the constitution evidently
means the central government or some particular organ of
the central government. In fact, in the Act and Consti-
tution it has at least three distinct though connected
meanings : — First, the political organism established under
the Act ; secondly, the territorial limits of that political
society ; and thirdly, the central government or some appro-
priate organ thereof. Where the constitution prohibits
"the Commonwealth" from making laws of certain kinds

66 NATURE OF THE FEDERAL COMMONWEALTH.

(as in sections 99, 100, 114, 116) the prohibition of course
is addressed to the Parliament as the legislative organ of
government ; but such prohibition does not bind the Com-
monwealth as a political organism, for the constitution
may be amended by the Commonwealth.

The Commonwealth is not an organization consisting
merely of a Parliament exercising limited powers with an
executive of judiciary to support it, though that is the
implication of the common and convenient expression
"Commonwealth Powers." There is an organization behind
the Parliament which, save for the supremacy of the Im-
perial Parliament, is the political superior over all its parts,
and over all persons and things therein. The Common-
wealth, in its ultimate organization, short of dissolving
itself or otherwise infringing an Imperial Act, may exercise
every power of government within its territory, and strip
the States — which exist as governmental agencies only, by
the sufferance of the Commonwealth — of every power. This
is no more than follows from the analogy of the Common-
wealth to a " state " in the juristic sense. It threatens
nothing to the security of the States in the Commonwealth ;
for the acknowledgment of the organic nature of the
Commonwealth does not imply anything as to the form
of the organization, and certainly does not imply unitary
action by bare majority.^

THE ORIGIN OF THE COMMONWEALTH.

The Commonwealth, with its constitution, is a legal
institution, since it was established under the authority of
the acknowledged political superior. The Constitution is
lirst and foremost a, law which is declared (section v.) to
" be binding on the courts, judges, and people of every State
and of every part of the Commonwealth." The agreement
of the colonies, which was the occasion for the law, is no
more than one of the circumstances to which resort may be
had in interpreting the law. The form of the establish-
ment of the Commonwealth may be compared with the

^ See Appendix A — " The Nature of Federal Union."

LEADING FEATURES. 67

preamble of the Constitution of the United States. The
famous '*We, the people of the United States, do ordain
and establish " has a threefold significance. First, it points
to the national or unilateral as distinguished from the
conventional nature of the Union ; secondly, as the act of
the people and not of their governments, it negatives the
old confederate union; and thjjrdly, it indicates the de-
mocratic basis of the state. /In the formation of the
Commonwealth, the free acknowledgment of the contract
behind the Constitution may be made without impairing the
stability of the Union, because the Constitution is the act
of an undoubted sovereign authority. The people do not
affect to ordain and establish; they have agreed to unite; and
in the making of that agreement the most scrupulous care
was taken to make the popular participation a* reality and
not a fiction ; secondly, as in the United States, the Com-
monwealth of Australia, being a union of the people of the
several colonies and not of their governments, is no mere
confederacy; and thirdly, the insistence of "the people"
indicates the democratic origin and nature of the union,
and foreshadows the character of the institutions of the
Commonwealth, that it is to be a state in which Lincoln's
doctrine is to hold, where there is to be government of the
people by the people for the people.

THE NATURE OF THE COMMONWEALTH.

We have seen that the Commonwealth forms a single
political community, though a dependent community; and
we have now to consider what is meant by the description
" federal." In the first place, the term " federal," which is
generally used in conjunction with ** state," is more appro-
priately used to describe a form of government in the state.
A federal government exists where a state distributes the
powers of government between two classes of organization
— a central government affecting the whole territory and
population of the state, and a number of local govern-
ments affecting particular areas and the persons and things
therein — which are so far independent of each other that

«8 NATURE OF THE FEDERAL COMMONWEALTH.

the one cannot destroy the other or limit the powers
of the other, or encroach upon the sphere of the
other as determined by the state in the Constitution.
Both are completely subject to the state. Either may
be changed or abolished at will by the state.^ This,
while it imperfectly describes any existing Federation,
is all that can be said of every Federation,^ and would
indeed require modification and explanation to fit the
Dominion of Canada. But the observation of Federal
Governments leads us in the case of any particular fede-
ration to consider what is its organization in various other
particulars. The following are from this point of view,
the leading features in the Federal Commonwealth of
Australia :

1. The Commonwealth is formed of communities which,
whatever their earlier condition, were at the time imme-
diately preceding the Union separate and independent in
their relation to each other. In the formation of the Com-
monwealth there is no severance of existing communities,
as in Canada, where the legislative union of Upper and
Lower Canada was dissolved by confederation. But the
question of disintegration was raised in relation to Western
Australia and Queensland ; and there is full power to form
new States within the Commonwealth, either by the
division or the union of States' territory. (Constitution,
section 124.)

2. The Commonwealth Government is a government of
limited and enumerated powers ; and the Parliaments of the
States retain their residuary power of government over
their territory.

3. The Commonwealth Government and the State are
each organized separately and independently for the per-
formance of their functions, whether legislative, executive,
or judicial. The powers of the States come from the
organization and powers which were theirs prior to the
establishment of the Commonwealth. Though they owe

^ Burgess, Political Science and Constitutional Law, vol. ii. , pp. 5, 6.
^ See Appendix A.

LEADING FEATURES. 69

their existence as " States " to the Act, there is no break in
the continuity of the political existence which began as
" Colony" or " Province." But though the Commonwealth
and State Governments are separately organized, the Com-
monwealth and the State system must be regarded as one
whole; and in the United States the disposition to treat the
federal and State authorities as foreign to each other has
been condemned as .founded on erroneous views of the
nature and relations of the State and Federal Governments.
" The United States is not a foreign sovereignty as regards
the several States, but is a concurrent and within its juris-
diction a paramount sovereignty " ; their respective laws
"together form one system of jurisprudence which con-
stitutes the law of the land for the State, and the Courts of
the two jurisdictions are not foreign to each other, nor to
be treated by each other as such, but as Courts of the same
country having jurisdiction partly different and partly con-
current." ^

It is no part of the purpose of the Constitution to recast
the institutions of the State, and the Constitutions of the
States and the powers of their Parliaments are in general
terms continued as at present (Constitution, sections 106,
107, 108), but modified of course by the powers conferred
upon the Commonwealth Government, and by certain
restrictions imposed on the States. The organization of
the Commonwealth Government, — the establishment of its
legislative, executive, and judicial organs, and the defini-
tion of their functions, — is the principal subject of the
Constitution.

4. The legislative powers of the Commonwealth Parlia-
ment are not in general exclusive powers. A few exclusive
powers are expressly conferred, including the power over
the matters of administration taken over by the Common-
wealth Government (section 52) ; others arise from the fact
that some of the powers conferred upon the Commonwealth
Parliament are not derived from the existing powers of the

^ Glaflin v. Houseman, 93 U.S. 130. And see the judgment of Marshall,
C.J., in Cohens v. Virginia, 6 Wheaton, 428.

70 NATURE OF THE FEDERAL COMMONWEALTH.

States. The general relation of the " concurrent powers "
— to use the popular term — of the Commonwealth and
State Parliaments is fixed by the provision that in case of
inconsistency the law of the Commonwealth prevails, and
the law of the State is to the extent of the inconsistency
invalid. (Section 109.)

5. Subject to what has been said in (4), the Common-
wealth Government and the States Governments are in
their relations independent and not hierarchical. There is no
such general supervision of the State in the exercise of the
powers belonging to it as is enjoyed by the Dominion
Government over the provinces of Canada. This is not to
say that the respective Governments do not owe certain
duties to each other, or that the State or some of its organs
may not be in some cases the instrument of the Common-
wealth Government. The exception to this independence
is in the department of judicature, for the High Court of
the Commonwealth is the head of the judicial system both
of the Commonwealth and of the States, and the States as
corporate communities are in some cases now amenable and
in others can be made amenable to the jurisdiction of the
Commonwealth Courts (Constitution, chapter iii., " The
Judicature "). The existence of a sphere of State activity
which is subject to no sort of control by the legislative or
executive organs of the Commonwealth Government, and
the absence of any veto by the Commonwealth Executive
upon State legislation, are facts of great importance in
determining the limits of State powers. In Canada the
existence of the controlling power of the Dominion Govern-
ment has been referred to ^ as a reason for taking a more
liberal view of the powers of the Provinces than is taken of
the powers of the States in the United States where the
relations are similar to those set up in Australia.

6. The observance by the Commonwealth Government
and the States of the limits set to their powers is secured
generally, but not universally, by the action of the Courts
whose judicial duties may involve the determination of the

* E.g. Bank of Toronto v. Lambe, 12 App. Cas. 575.

TERRITORY. 71

validity of the authority under which acts are done, whether
that authority is the Crown, a subordinate legislature, or
any whatsoever save the Imperial Parliament.

THE TEERITORY OF THE COMMONWEALTH.

This expression may be used with different meanings.
First, we have seen that the Commonwealth is a territorial
community ; and its territory is the sum of the territories of
its parts. The territory of every State therefore is territory
of the Commonwealth. But there are parts of the Common-
wealth which, not forming part of any State (Act, sections
V. and vi. ; Constitution, section 127), stand outside the main
principle of federal government, and these are distinguished
by the expression "territory of the Commonwealth" from
the "■ territory of the States." Such parts of the Common-
wealth outside the State organization include :

1. Territory of a State surrendered by the State Parlia-
ment, thereby becoming subject to the exclusive jurisdiction
of the Commonwealth (sections 111 and 122).

2. Territory placed by the Queen under the authority of
and accepted by the Commonwealth, or otherwise acquired
by the Commonwealth (section 122).

8. By section 52 (1), the seat of government and all
places acquired by the Commonwealth for public purposes
are subject to the legislative power of the Commonwealth
exclusively ; and in the view taken in the United States,
the exclusive power of legislation in the Federal Govern-
ment, where it exists over any territory, carries with it
exclusive jurisdiction in all respects, so that the territory
in question ceases wholly to be in the power of a State.^

By section 125, the seat of government of the Common-
wealth shall be determined by the Parliament, and shall be
within territory which shall have been granted to or
acquired by the Commonwealth and shall be vested in and
belong to the Commonwealth, and shall be in the State of
New South Wales, and be distant not less than one hundred

^ Commonwealth v. Clary, 8 Mass. 72 ; United States v. Cornell, 2 Mason,
60.

72 NATURE OF THE FEDERAL COMMONWEALTH.

miles from Sydney. Such territory shall contain an area
of not less than one hundred square miles, and such portion
thereof as shall consist of Crown lands shall be granted to
the Commonwealth without any payment therefor.

A third meaning with which the expression " territory of
the Commonwealth " may be used, is in relation to property
in the land and not governmental power. Nowhere is it
more necessary than in communities in the economic con-
dition of the United States, Canada, and Australia to
appreciate the distinction between government and property.
The vast areas of public and unappropriated lands form one
of the most couvstant subjects of legislation and absorb the
attention of one of the largest departments of admini.s-
tration. In the United States and in Canada the Courts
have been called on again and again, in dealings between
the central and the local power, to determine whether the
transaction was one of cession or grant, of public power or
private right.^

Section 125 is a typical case of difficulty. The terms
employed — "granted to or acquired by," "vested in and
belong to " — are words of property rather than of jurisdic-
tion ; and it is open to question whether the section deals
with government and jurisdiction at all, whether the ex-
clusive power of the Commonwealth over the territory in
question does not come from § 52 (1) alone. The last
clause in § 125, which declares that such portion of the
territory as consists of Crown lands shall be granted with-
out any payment therefor, clearly designates a right of
property. It seems reasonable to conclude that the first
clause in the section at any rate embraces property, and
that the words "or acquired by" point to acquisition by
purchase of lands other than Crown lands either by
voluntary dealing or by the exercise of compulsory powers
under § 51 (xxxi.).

^ Canada, cf. St. Catharine's Milling and Lumber Coy. v. Reg. (1888), L.R.
14, A.C. 46; Att. Gen. of Ontario y. Att. Gen. of Dominion (1898), A.C.
700 ; etc. United States, C(yrfield v. Corijell (1825), 4 Wash., C.C. 371 ; Fort
Leavenworth v. Lowe, 114 U.S. 525.

TERRITORY. 73

UNION UNDER THE CROWN.

The recital in the preamble is no mere expression of
loyalty, but is a statement of fact to which the most
important legal incidents attach. The Crown establishes
the Commonwealth, is a part of the Federal Parliament, is
the depositary of the executive power of the Common-
wealth, and retains the power (subject to limitations to be
considered) of entertaining appeals in Council. So much is
provided in the Act itself ; but the Act does not exhaust
the relations of the Crown to the Commonwealth. The
prerogative runs there as in other dominions of the Crown ;
and in analogy to the practice whereby in the United
Kingdom the prerogative secures the people against an
abuse of power by the instruments of government, so in the
colonies the prerogative is no reservation of personal enjoy-
ment or profit to the Crown, nor even to any great extent
of power to the Imperial Government, but is an instrument
for increasing and effectuating the powers of self-govern-
ment. While the paramount power of the Imperial Parlia-
ment emphasizes the dependent condition of the colonies,
the unity of the Empire is manifested in the omnipresence
and indivisibility of the Crown. Save in the rare cases in
which, for the purpose of suit in their own Courts, colonies
have made an exception by statute, the Colonial Govern-
ments, like the Government of the United Kingdom, have
no corporate existence save in the Crown. ^ For this reason,
the governments of the colonies, though not sovereign, have
in all parts of the Empire that immunity from suit which
belongs to the Crown. A claim by the Crown in right of
any part of its Dominions can be prosecuted, not merely in
that part of the Empire which is immediately concerned,
but in any Court which, according to ordinary principles,
las jurisdiction of the cause ; and the adjustment of
iiiterests as between the different parts of the Empire is in

^ Sloman v. Governor and Government of ^ew Zealand, L.R. 1, C.P.D.
563.

74 NATURE OF THE FEDERAL COMMONWEALTH.

general not a matter for the consideration of the Court. ^
The indivisibility of the Crown is peculiarly manifested by
the position of the Attorney General. The Crown appears
in Court in any part of the British Dominions by the law
officer for that part ; and it is immaterial that the particular
interest involved is imperial, local, or touches some other
part of the dominions of the Crown. The Attorney General
for a colony, like the Attorney General for England, repre-
sents the Crown and holds office under the Crown. In
1879 the House of Commons adopted the report of a Select
Committee, supported by past and present Law Officers of
the Crown, to the effect that by acceptance of the office of
Attorney General for Victoria, Sir Bryan O'Loghlen, member
for County Clare, had vacated his seat in the House.^

The establishment of the Commonwealth in no way
affects the participation of the Crown in the government of
the States ; the principles which governed the relations of
the colonies to the Crown will govern them as States.
Notwithstanding the emphatic declaration of the Consti-
tution (section 2), that the " Governor-General appointed by
the Queen shall be Her Majesty's representative in the
Commonwealth," the Crown is represented in the States
Governments by the State Governor, or other administrator
of the Government. Even in Canada the existence of the
Dominion Government does not sever the connexion between
the Crown and the provinces so as to make the government
of the Dominion the only government of the Queen in North
America, and reduce the provincial governments to the rank
of municipal institutions; the several provincial govern-
ments remain as Governments of the Queen within the
limits prescribed by the British North America Act, 1867.^

^ See in re Bateman\s Trmts, L.R. 15, Eq. 355 ; in re Oriental Bank, Cor-
poration, ex parte The Crown (1884), 28 Ch. Div. 643 ; MoiiJc v. Ouimet
(Canada), 1874, 19 L.C.J. 71. But see also A.G. for Ontario v. Mercery
L.R. 8, A.C. 767 ; and St. Catharine's Milling and Lumber Coy. v. Reg.
(1888), 14 A.C. 46.

^ Hansard's Debater, 1879, vol. 245, p. 1104.

^Maritime Bank of Canada v. New Brunswick Receiver General (1892),
A.C. 437.

CHAPTER IV.

"THE CONSTITUTION" OF THE COMMONWEALTH.

CONTENTS OF THE CONSTITUTION.

A Constitution ^ in the modern sense is a fundamental
law or instrument of government. It consists mainly of :

1. The frame of government, which creates and pro-

vides for the continuance of the legislative,
executive and judicial organs, and defines their
powers and relations to each other ;

2. An enumeration of rights of the citizens or classes

of citizens against the government w^hich may
vary from the enunciation of a few general
principles which are rather counsels of perfection
than practical restraints, to the most minute
provisions on all sorts of matters rigorously
binding the organs of government ; and

3. Provisions for amendment.

It will also contain a number of arrangements which are
provisional and temporary merely, but are necessary to
start the machine upon its work.

The constitution of a state formed by the union of states
is a more complicated matter. We do some violence to the
idea of contract when we regard an ordinary constitution
either as a compact of the citizens or a compact between
the citizens and their government; but we need neither

^For the history of the term "Constitution," see The English Con-
stitution, by Jesse Macy, cap. xlvii.

76 THE CONSTITUTION OF THE COMMONWEALTH.

analogy nor metaphor to speak of the agreement of the
parties in a union of states. As Professor Dicey remarks,
" the foundations of a federal state are a complicated con-
tract," and this bargain may include many matters. The
States are jealous not merely of possible encroachments
of the central government on their sphere, but of the
possibility of a rival State securing any advantage over
them in matters within the power of the central govern-
ment. This jealousy is not less apparent in the Australian
Constitution than in others of the same kind ; and it has
some very important consequences. The principle of State
equality and State right, pressing upon and conflicting with
the democratic principle, modifies the democratic character
of the Constitution which, where there is not room for that
conflict, is the dominant note of the instrument. Fervid
declarations of individual right, and the protection of
liberty and property against the government, are conspicu-
ously absent from the Constitution; the individual is
deemed sufficiently protected by that share in the govern-
ment which the Constitution ensures him. Another feature
which belongs to the federal character of this instrument is
that the Constitution in many cases does not confine itself
to conferring powers on the central government, but pre-
scribes how those powers are to be used. This, in the
opinion of an eminent and friendly critic (Sir Samuel
Griffith), goes beyond the proper functions of a Constitution.
Others see in these provisions indications of a general
distrust of parliamentary institutions.^ The contractual
basis of the Constitution seems a sufficient answer to both
objections.

If the Constitution makes fundamental some things that
might be in the control of the governmental organs, it also
contains much that is not fundamental. There are many
provisional arrangements which are completely under the
control of Parliament, but which had to be established
before the government could get under weigh. Whether

^ See two articles by Mr. A. H. F. Lef roy in the Laio Quarterly Review,
April and July, 1899.

SUPREMACY. 77

these arrangements might not more conveniently have been
contained in a separate instrument, or put in a schedule of
the Act, it is useless now to consider. It is sufficient to note
that " Until the Parliament otherwise provides," is a phrase
which meets us in all parts of the Constitution.

SUPEEMACY OF THE CONSTITUTION.

The preamble of the Act recites the agreement to unite
"under the Constitution hereby established"; and the Act
demonstrates the supremacy of the Constitution over all
the organs of government within the Commonwealth.

Colonial Constitutions. — The Legislatures of British
Colonies have necessarily existed under some higher law,
and have from the nature of the case recognized some limits
to their power other than their own will. These limits,
however, have been so vaguely conceived, that in practice
the restraint has hardly been felt. The paramount nature
of Imperial legislation has of course been evident ; but the
sphere of local and Imperial laws has been different, and
there has been little conflict. On the few occasions when
colonial laws have been challenged as ultra vires, the Eng-
lish Courts, and especially the Privy Council, have been
emphatic in their assertion of the plenitude of the powers
of the colonial legislatures, and have laid it down that "an
act of the local legislature, lawfully constituted, has, as to
matters within its competence and the limits of its juris-
diction, the operation and force of sovereign legislation,
though subject to be controlled by the Imperial Parlia-
ment." ^ Thus colonial legislatures have been formed on
the model of the Imperial Parliament ; and the Acts giving
a Constitution to a colony have done little more than
establish a Legislature, and have left the further organ-
ization of government within the colony if not to the
establishment, at any rate to the control of the Legislature.
The source of executive power, and the origin of courts of
justice, may have been in the Crown, but that in no wise

^Phillips V. Eyre, L.K. 6, Q.B. 1 ; see also R. v. Burah, 3 A.C. 889;
Hodge v. Reg., 9 A.C. 117 ; Powell v. Apollo Candle Coy., 10 A.C. 282.

78 THE CONSTITUTION OF THE COMMONWEALTH.

withdrew these matters from the control of the Legislature.
The Crown is commonly an immediate party to a colonial
as to an Imperial Act ; most colonial laws are enacted by
the Queen's Most Excellent Majesty, and not by any less
authority ; and in all cases the express or implied assent of
the Crown itself is given by actual confirmation or by
" leaving the Act to its operation."

The legislative power is all-embracing, and within the
colony all other powers of government follow it.

A Constitution, therefore, which establishes a Legislature
not merely as a representative assembly responsible to its
constituency, but legally bound by many and exact limita-
tions, is hardly less a novelty in a British colony than it
would be in the United Kingdom. This will be the more
apparent if we consider for a moment what would be the
position were the paramount power of the Imperial Parlia-
ment removed. In the colonies as hitherto organized, the
removal of the only legal control would leave the colonial
legislature unquestioned sovereign, wielding in the colony
the same power that the Imperial Parliament exerts in the
United Kingdom. In the Commonwealth of Australia,
however, the disappearance of the Imperial Parliament
would not exalt the Commonwealth Parliament; the
sovereignty would fall upon the Commonwealth as
organized behind the Parliament by the Constitution. If
now we remember that the supremacy of the Imperial
Parliament is a force rarely exerted, while the pressure of
the Constitution is constant, we shall see that there was
reason on the side of those who murmured that a " cast-iron
Constitution " was something essentially different from the
Parliamentary rule to which the colonies had been accus-
tomed.

Meaning of " The Constitution." — " The Constitution,"
therefore, in the Commonwealth is an exact term. In the
first place, it gives the title to the Act of Parliament under
which the Commonwealth is established. This Act may be
cited as " The Commonwealth of Australia Constitution
Act " (section i.). That does not mean that everything in

THE CONSTITUTION AND CONSTITUTIONAL LAW. 79

the Act is technically part of the Constitution ; it merely
follows the common plan of taking the title from the most
conspicuous feature in the Act. The covering clauses
(sections i.-viii., and the introductory words of sect, ix.) are
no part of the Constitution ; from their nature, providing
for the establishment of the Constitution, and dealing with
its authority, they fitly stand outside and above the instru-
ment they govern, and rest upon the supremacy of the
Imperial Parliament.

Section ix. provides : " The Constitution of the Common-
wealth shall be as follows " ; and then under the title " The
Constitution," w^e find set out the organization of the
government of the Commonwealth, the duties, powers, and
limitations of the organs of government, and the organi-
sation of the Commonwealth behind its government. " The
Constitution," then, is a definite instrument, having the
Imperial Parliament for its source, binding the organs of
government which it establishes, and therefore superior in
authority to the enactments of the legislature which it
creates ; but it may be freely altered or added to by the
Commonwealth as is provided by the instrument itself.

Tlie Constitution and Constitutional Law. — In the
British Constitution, we are familiar with the fact that the
''Law of the Constitution" does not exhaust the rules
under which our system of government is carried on ; there
is the custom as well as the law of the constitution, to com-
plicate the terms " constitutional " and '' unconstitutional."
In the Commonwealth, there is a further complication ; for
"The Constitution" does not exhaust even the Consti-
tutional law in force there. An exhaustive constitutional
code could hardly be compiled for any part of the British
Dominion without codifying the whole or a great part of
the common law. The Parliament has power over several
subjects, the laws on which are ordinarily regarded as part
of constitutional law — e.g. the qualification of candidates
and electors for the Parliament, disputed elections, privilege
of the Houses and the members thereof, naval and military
defence, the organization of the Civil Service, the establish-

80 THE CONSTITUTION OF THE COMMONWEALTH.

ment of courts of justice, etc. Then there is the consti-
tutional law affecting the Commonwealth as a part of the
Empire, or as a dependency. There is the constitutional
law of each of the States. There are rules affecting the
relation of the Government to the subject and the subject
to the Government. Of all of these account must be taken
by one who would understand the system under which the
political life of Australia is lived ; and they all form part of
constitutional law as generally conceived by Englishmen.

The Authority of the Constitution in the State.-^The
emphatic declaration of Art. vi. in the Constitution of the
United States, that the Constitution and the laws made in
pursuance thereof shall be " the supreme law of the land,"
is not to be found in the Commonwealth Constitution.
The Constitution Act can claim no higher force than
belongs to an Act of the Imperial Parliament, and it is not
the only Act in operation in the Commonwealth. The duty
of the Commonwealth Executive to maintain the Consti-
tution and execute the laws of the Commonwealth Parlia-
ment is expressed in its very establishment (section 61);
the duty of the judiciary to recognize and enforce the
" Constitution " and the laws made in pursuance of it, is
manifest. But the position of the States Governments is
different. They are not created and established by the
Constitution; their executive and judiciary are not co-
ordinate with, but subordinate to the State Parliament.
The State Parliaments are bodies with " plenary powers," a
phrase which would cover many extravagant claims. It
might be plausibly contended that in a State Court, State
Law was paramount over Commonwealth Law, and that
Commonwealth legislation was there controlled by State
legislation, even to the extent of giving validity to Acts of
nullification passed by the State Parliament as to Acts
of the Commonwealth Parliament. Or it might be urged
that the Constitution set up a separate and independent
system ; that its laws were cognizable in the Federal Courts
alone, and that all causes brought in the State Courts were
to be determined by the State laws as defined by the State

THE CONSTITUTION IN THE STATES. 81

Parliaments. There would thus be imperium in imperio
I — State Laws enforced by State Courts, Commonwealth
' Laws enforced by Commonwealth Courts. We have only
to look to our own history, even our recent history, to see
that such a dual system is conceivable. We remember
the separateness of the ecclesiastical and royal courts, the
court of admiralty and the courts of common law, the
courts of common law and the equitable jurisdiction of
the Chancellor, as cases where distinct and often conflicting
systems claimed to deal with the same persons and subject
matters within the same territory. Even when the sharp-
ness of conflict was blunted by the acknowledgment of a
common superior, the existence of the separate systems was
not less a legal fact though its political importance was
diminished.

As a measure of caution, then, the Act provides: —
" V. This Act and all laws made by the Parliament
of the Commonwealth under the Constitution shall
be binding on the Courts, judges, and people of
every State, and of every part of the Common-
wealth, nothwithstanding anything in the laws
of any State." ^
Thus in the causes within their jurisdiction, the Courts
of the States are bound to uphold the Constitution and
maintain the Commonwealth laws. As this is their duty,
they have to determine for themselves whether an Act of
the Parliament is in truth a law, whether it is within the
powers committed by the Constitution to the Parliament.
The interpretation of the Constitution, therefore, is not for
the Judiciary of the Commonwealth alone ; it falls upon
every court throughout the Commonwealth, whatever the
authority under which it sits.

^ Section V. of the Commonwealth Act strikingly resembles the original
form of Article VI. in the Constitution of the United States. The draft
provided that "legislative Acts of the United States and treaties are the
supreme law of the respective States, and bind the judges there as against
their own laws. "

CHAPTEK V.

DISTRIBUTION OF POWERS IN THE COMMON-
WEALTH GOVERNMENT.

The Constitution follows the plan of the United States
Constitution in committing the functions of government
— legislative, executive, and judicial — to three separate
departments.

"The legislative power of the Commonwealth shall be
vested in a Federal Parliament (section 1).

"The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order, and good
government of the Commonwealth with respect to " the
matters enumerated (sections 51 and 52).

**The executive power of the Commonwealth is vested
in the Queen, and is exerciseable by the Governor-General
as the Queen's representative, and extends to the execution
and maintenance of this Constitution, and of the laws of
the Commonwealth" (section 61).

"The judicial power of the Commonwealth shall be
vested in a Federal Supreme Court, to be called the High
Court of Australia, and in such other Federal Courts as
the Parliament creates, and in such other Courts as it
invests with federal jurisdiction " (section 71).

The Go-ordination of Poivers. — As in the Federal
Government of the United States, the departments of the
Commonwealth Government are "co-ordinate in degree to
the extent of the powers delegated to each of them. Each

CO-ORDINATION OF POWERS. 83

in the exercise of its powers is independent of the other;
but all rightfully done by either is binding on the others.
And the Constitution is supreme over all." ^ The three
departments of government equally owing their origin to
the Constitution and deriving their functions from it,
there is no ground for any claim by the Legislature to
treat the Executive and the Judiciary as mere auxiliary
organs whose sole duty lies in obedience to the mandates
of the Legislature. Each of the departments has to
interpret the Constitution for itself so far,, and so far only,
as is necessary for the discharge of its own functions.
The Parliament which legislates, the Executive which
carries out, and the Court which judges, may each in
succession have to interpret the same power. But it may
happen that the validity of a particular exercise of power
never reaches the Courts for adjudication at all. In
the ordinary affairs of life, it is notorious that many
things are done without right, that many transactions are
carried through which no Court would support, that many
wrongs go unremedied and crimes go unpunished. So, in
the Commonwealth, many an unconstitutional Act may be
passed, and produce all the social and economic effects
which would belong to it if it were lawful. The inter-
pretation of the Courts is strictly a judicial act; the Courts
act neither as advising the Legislature nor as allowing or
disallowing its enactments. In order that the Courts
may pass upon an Act of the Legislature, or a matter of
executive action, there must be some litigation before them
raising the question, and there may never be such litiga-
tion. The range of inquiry into the lawfulness of alleged
authority which an English Court of Law will undertake
is very wide; but it has its limits. It by no means follows
that all who suffer damnum by an act in excess of
authority can also show injuria ; legislative and executive
acts alike may be fruitful of consequences which extend
beyond the known causes of action, and for which the
Courts can offer no remedy. Judge Cooley has said : " The
Wodge v. Woolsey, 18 How. 381.

84 POWERS IN THE COMMONWEALTH GOVERNMENT.

common impression undoubtedly is, that in the case of any
legislation where the bounds of constitutional authority
are disregarded . . . the judiciary is perfectly competent
to afford the adequate remedy ; that the Act, indeed, must
be void, and that any citizen, as well as the judiciary itself,
may treat it as void, and refuse obedience. This, how-
ever, is far from being the fact."^ We shall find many
provisions in the Constitution which have none but
" political " sanctions.

If the matter does become the subject of judicial in-
vestigation, the judicial interpretation binds the Legisla-
ture only in indirect fashion. The decision becomes an
authority, raising a probability ranging, according to
many circumstances forming part of the practice of our
Courts, from practical certainty on one side to the gravest
uncertainty on another, that that Court and other Courts
will decide the same question in the same way. The
Legislature will be aware of this probability, and will
generally refrain from passing Acts which are likely to
be ineffective by reason of the refusal of the Courts to
enforce them.

The distribution of power between the Commonwealth
and State Governments is sanctioned by the power and the
duty of the Courts of Commonwealth and State alike to
interpret the Constitution, and to refuse recognition to Acts
of the Legislature of either encroaching on the sphere of
the other.

The question remains whether this duty of interpretation
extends to the definition of " legislative power." May the
Courts consider whether an Act of the Commonwealth Par-
liament— we shall see that the question can hardly arise as
to an Act of the State Parliament — upon a matter com-
mitted to it is an exercise of legislative power in relation
to that subject, or is a usurpation of executive or judicial
power ?

^ Journal of the Michigan Political Science Association, vol. i., p. 47 ; cited
by Thayer, The Origin and Scope of the American Doctrine of Gonstitutionat
Law, p. 9.

CO-ORDINATION. 85

The Constitution, we have seen, follows the plan of the
Constitution of the United States, a plan which has been
adopted also in the Constitution of every one of the
American States. In America the separation of powers
of the organs of government is uniformly sanctioned by the
action of the Courts. The creation of separate departments
is treated as an implied prohibition of each from exercising
any of the powers that belong to another ; and the Courts
have constantly to consider not merely whether an Act of
the Legislature which is in question deals with a subject
committed to the Legislature, but whether the Act is a true
exercise of legislative power or an assumption of judicial
power. This view did not prevail without some question.
In 1798 the Supreme Court of the United States laid it
down that "if a government of legislative, executive, and
judicial departments were established by a Constitution
which imposed no limits on the legislative power, the
consequence would invariably be, that whatever the
Legislature chose to enact would be lawfully enacted, and
the judicial power could never interpose to pronounce it
void." ^ And though the doctrine of the separation of
powers is now thoroughly established in the American
Courts, as an independent principle, the more important
cases in which the Courts have called attention to the
separation of powers have been decided, not on the implied
prohibition arising from the separation, but upon express
restraints imposed on the Legislature by the Constitution,
as the prohibition of bills of attainder, and the making of
ex post facto laws, and — in the case of States Legislatures
— laws impairing the obligation of contracts, and laws
infringing the Fourteenth Amendment. Had not the
separation of powers been made, the disposal of executive
and judicial duties must have devolved upon the depart-
ment vested with the general power to make laws.^ This
is in accordance with the opinion expressed in Colder v.
Bull, already cited, and Cooper v. Telfair? where Patterson,

^Per Iredell, J., Colder v. Bull, 3 Dallas, 386.

"^ Cooley, Constitutional Limitations, section 90. ^ 4 Dallas, 19.

86 POWERS IN THE COMMONWEALTH GOVERNMENT.

J., said : " I consider it a sound political proposition, that
wherever the legislative power is undefined, it includes the
judicial and executive attributes."

In the British Colonies there has not been a separation ot
powers; the executive and the judiciary have been or-
ganized under the legislature. An attempted exercise of
])ower by the legislature contrary to that expediency
which leaves the executive and the judicial functions to
other departments, is checked by the power of the Crown
to disallow Acts ; and in the case of the American
Colonies, Acts were frequently disallowed on this ground.^
The Privy Council has emphasized the plenitude of the
powers of the Legislature, and likene*! them to the powers of
Parliament itself, even in those cases where, as in the
Provincial Legislatures of Canada, the subjects of legisla-
tion are limited by enumeration.^ In the Dominion
Government of Canada, where the British North America
Act, 1867, vests the executive power in an authority not the
Legislature, the general grant does not prevent the
Dominion Parliament from making full provision for
carrying out its laws, and constituting appropriate
authorities for that purpose. On the other hand, it is true
that in several instances Canadian Courts have dwelt upon
the purely legislative powers of the Provincial Legislatures,
and have considered that the executive and judicial powers,
not being expressly given, are impliedly withheld.^ In
the Privy Council itself, there have been observations
indicating that the question, What is legislation ? is one for
judicial consideration. Thus, during the argument in Att
Gen. for Hong Kong v. Kwok-a-Sing, * Mellish, L. J., said
that " It was assumed in Phillips v. Eyre that an Act of
Attainder would be void." In the leading case of R. v.
Burah,^ where one of the questions was as to the power

^ Chalmers, Opinions of Eminent Lawyers, vol. ii.
2 E.g. Hodge v. Beg., 9 A.C. 117.

^ See Lefroy's Legislative Power in Ca7iada, p. 125. ^L.R., 5 P.C. 179.

^L.K., 3 A.C. 889, 904. "If what has been done is legislation within

the general scope of the affirmative words which gave the power, and if it

DISTRIBUTION. 87

of the Governor-General in Council in India to remove a
certain area from the jurisdiction of the High Court, Lord
Selborne, in delivering the opinion of the Board, uses
language which, while not unambiguous, suggests that the
question whether what has been done is legislation is a
matter for the consideration of the Court. In the case of
Fielding v. Thomas} a Statute of Nova Scotia had conferred
upon the House of Assembly the character of a Court of
Record, with inherent power to punish for insults or libels
on members during session, and had provided that members
who were present and voted on the question of the arrest
of an offender, should enjoy the immunities of a Court of
Record. In considering the validity of the Act, the
J udicial Committee said : " It may be that the words, if
construed literally, and apart from their context, would be
ultra vires. Their Lordships are disposed to think that the
Legislature could not constitute itself a Court of Record for
the trial of criminal offences.^ But read in the light of
other sections of the Act, and having regard to the subject-
matter with which the Legislature was dealing, their
Lordships think that these sections were merely intended
to give to the House the powers of a Court of Record for
the purpose of dealing with breaches of privilege and
contempt by way of committal. If they mean more than
this, or if it be taken as a power to try or punish criminal
offences otherwise than as incident to the protection of
members in their proceedings, section 30 cannot be
supported."

In determining the powers which may be exercised by
each of the organs, regard must be had to history and

violates no express condition or restriction by which that power is limited
(in which category would of course be included any Act of the Imperial
Parliament at variance with it), it is not for any Court of Justice to inquire
further, or to enlarge constructively those conditions and restrictions."

ni896] A.C. 600.

2 Though "Criminal Law" is a Dominion matter, the "Constitution
of Courts of Criminal Jurisdiction " is excepted ; and the Provincial Power
includes the "Constitution, maintenance, and organization of Provincial
Courts, both of Civil and Criminal Jurisdiction."

88 POWERS IN THE COMMONWEALTH GOVERNMENT.

common practice as well as to the nature of the power
itself. Thus, the Courts exercise a power of making rules
for the conduct of judicial business ; each branch of the
Legislature, without invading the "judicial power," exercises
functions which are judicial in their nature in regard to
its own privileges, and in respect to its constitution. Nor
can it be doubted that the Parliament may, without
abdicating its legislative power, delegate to the Governor-
General in Council powers of subordinate legislation. The
complex conditions of modern life make such powers
increasingly necessary. The same necessity leads to a
further delegation of legislative power to the judges in
regard to the administration of justice. As to the Execu-
tive, it is common experience that there are many offices
which combine executive and judicial functions. The
discipline of the services of the Commonwealth, both civil
and military, involves the exercise of punitive powers by
the Executive ; these powers the Legislature can restrain by
requiring that they shall be exercised only for specific
causes, and after inquiry by tribunals acting upon judicial
lines, and can extend (as it does in the case of the military
forces) by adding to the ordinary official sanctions of
degradation, suspension, or dismissal, the ultimate sanctions
of the criminal law. Yet even in the United States it is
conceded that the powers of a Court-martial are not within
the judicial branch of the Government, and that Courts-
martial belong to the Executive.^

Opinion seems agreed that all the powers of a government
which do not belong to the executive or the judiciary
belong to the legislature.^ Thus the taxing power, though
in itself hardly a " legislative power," is always deemed to
belong to the legislature. It follows that the plenary power

^ See Chapter xvi.

2 "When a power is not distinctly either legislative or executive
or judicial, and is not by the Constitution distinctly confided to a
department of the government designated, the mode of its exercise and the
agency must necessarily be determined by law ; in other words, must
necessarily be under the control of the legislature." — Cooley, Constitutional
Laio, pp. 45-6.

DISTRIBUTION. 89

possessed by the Commonwealth over the subjects committed
to it is exerciseable by the Parliament whenever it is not
exerciseable by some other power. Both executive and
judicial power (the former so far as it is productive of any
juristic consequences) involve the application of existing
law. Such a power is very rarely usurped by a legislature ;
the temptation to which legislatures are liable, to which
American Legislatures have succumbed, and which American
Courts have sought to defeat by alleging an invasion of the
judicial power, is to apply a new rule to past acts or events,
or to deal v^^ith a matter independently of all rule. How-
ever mischievous and dangerous may be ex post facto laws
and privilegia, their verj^ mischief lies in the fact that they
are something other than judicial acts ; and the propriety,
the justice, or the expediency of an Act of Parliament is a
question which lies outside the jurisdiction of any Court.
It may be conjectured that in this matter of the distribution
of powers, our Courts will not closely follow the American
precedents,^ which w^ould assign to the Commonwealth Par-
liament in its sphere a position quite different from the
States Parliaments in their sphere. In America, as has been
already pointed out, the practical restraints upon the legis-
lature came rather from express prohibitions than from the
implications of the separation of powers. The political
ideas under the influence of which the United States Con-
stitution was established, ideas which have been developed
in the States Constitutions, are very different from those
prevailing in Australia : the distrust of legislatures is not
the first article of political faith in the new Commonwealth.
It is suggested, therefore, that those questions of generality
as to persons or circumstances, and of prospective or retro-
spective operation which are discussed in America on the
distribution of powers among legislative, executive, and
judicial organs, have not the same importance in the
Commonwealth Government. The question of generality,
it is true, may be important, but as an incident of the dis-

^ The American cases are very fully considered in Cooley, Constitutional
Limitations.

90 POWERS IN THE COMMONWEALTH GOVERNMENT.

tribution of power between Commonweath and State ^
rather than of the distribution of powers among the organs
of the Commonwealth Government.

The Preponderance of the Parliament — The distribution
of powers by the Constitution is not inconsistent with the
preponderance of the Parliament in the Government; the
tradition of the identity of self-government with Parlia-
mentary Government remains, and the Constitution is in
the main regarded as a transfer of powers now exercised in
the several colonies by the respective Parliaments to a
Parliament which represents the whole. In addition to
that kind of control over other functions which the power
of making laws necessarily carries, the Parliament is
expressly given considerable powers of control over the
executive and judiciary. 'Parliament may make laws on
any matter incidental to the execution of powers vested by
the Constitution in any of the organs or officers of the
Commonwealth (section 51, art. xxxix.). The organization
and regulation • of the executive is almost exclusively in
the hands of Parliament, which fixes the number of
Ministers (section 65), and controls the appointment and
removal of all officers in the public service (section 67).
Cabinet Government is everywere a matter of convention
rather than of law, but it is more clearly adverted to in the
Commonwealth Constitution than in the Constitution Act
of any of the colonies (section 64). The financial necessi-
ties which secure Parliamentary control over the working
of the public departments will of course exist in the
Commonwealth as elsewhere ; and the Constitution does
not leave the assembly of Parliament to those necessities,
but requires that it shall meet every year and at such times
that twelve months shall not intervene between sessions
(section 6). Even in the judicial department the establish-
ment and jurisdiction of Courts other than the High Court
of Australia are completely controlled by Parliament. The
provision as to the tenure of judges (section 72) intended to
secure them against arbitrary interference by either the

^ See The Legislative Power of the Parliament.

PREPONDERANCE OF PARLIAMENT. 91

executive or the legislature, rather indicate the course to be
followed by the two Houses of Parliament in the exercise of
the power of removal than impose any legal limits on their
power to remove at will. In the important matter of the
amendment of the Constitution, the power of initiation lies
in the Parliament alone, and is not, as in the United States,
shared with the States Governments, or, as in Switzerland,
with the people.

CHAPTER VI.

THE PARLIAMENT.

By section 1 of the Constitution, " The Parliament of the
Commonwealth " consists of " The Queen, a Senate, and a
House of Representatives."

A. THE CEOWN AND THE GOVEENOK-GENEEAL.

One of the few legal characteristics of self-governing
colonies is that the legislation generally proceeds in the
name of the Crown, while in colonies in a less advanced
state enactments are in the name of the Governor. The
inclusion of the Crown in " The Parliament " follows the
British North America Act, 1867.. sec. 17, and follows the
legal theory as to the composition of the Imperial Parlia-
ment.^ In the Commonwealth it is specifically provided
by section 2 of the Constitution that a Governor-General
appointed by the Queen shall be Her Majesty's representa-
tive in the Commonwealth, who has, and "may exercise
in the Commonwealth during the Queen's pleasure, but
subject to this Constitution, such powers and functions of
the Queen as Her Majesty may be pleased to assign to
him." The office of Governor-General has been created by
Letters Patent, and the Governor-General has been appointed
by Commission under the Royal Sign Manual and Signet. ^

Sections 3 and 4 of the Constitution relate generally to
the office of Governor-General, and have no special reference
to the Parliament or to legislative power. Section 3 pro-
^Blackstone, Com.^ i., p. 153. ^ See Appendix.

CROWN AND GOVERNOR-GENERAL. 93

vides for a salary of £10,000 per annum, which may be
altered by the Parliament, but so that the salary of the
Governor-General then in office is not affected. Section 4
deals with the construction of powers in the Constitution
conferred upon the Governor-General, and provides that
they may be exercised by the Governor-General for the
time being or by the administrator of the Government.
Section vii. of the Letters Patent follows upon this. Another
general provision affecting the office — the power of the
Crown to authorize the Governor- General to appoint a
deputy or deputies to act in any part of the Common-
wealth— is contained in section 126 ; the power is exercised
in the Letters Patent, section vi., which repeat the proviso
that the appointment of such a deputy or deputies shall
not affect the exercise by the Governor- General himself
of any power or function.

As sections 8 and 4 relate generally to the office of
Governor-General, it has been inferred that section 2 is
equally general ; and that the provision that the Governor-
General " shall have and may exercise " " such powers and
functions of the Queen as Her Majesty may be pleased
to assign to him," shuts out the contention of which some-
thing has been heard in Australia and in Canada, that the
Governor of a self-governing colony has virtute officii, and
without special grant, all the executive powers of the
Crown exerciseable in relation to the internal government
of the colony. The matter is referred to under the head
of " Executive Power." It may be noticed that the Constitu-
tion takes a new departure in speaking of the Governor-
General " as Her Majesty's representative " (sections 2, 61,
68). It is true that this term is used colloquially to
describe a Governor, and has been occasionally used in
judgments. It is believed that it has never before been
used in any Statute, Letters Patent, or Commission of a
Colonial Governor ; and, on the other hand, the expression
"the representative of the Queen in the government of
the colony " has more than once been used by the Judicial
Committee to describe a Viceroy, and to distinguish him

94 THE PARLIAMENT.

from a Governor, who is an officer merely with a limited
authority from the Crown. ^

The powers and duties of the Governor-General in rela-
tion to the Parliament and to legislation spring partly
from the Royal grant, and partly from the provisions of
the Constitution. Some of them, though of statutory
origin, correspond with actual prerogatives of the Crown,
or are in close analogy thereto ; others are rather in the
nature of ministerial Acts, lodged in the Governor-General
as the only permanent officer of the Commonwealth. The
following are the principal powers and duties related to
the prerogative:

1. He summons, prorogues, and dissolves the Parliament.
These are prerogative powers, and in accordance with

constitutional custom they are conferred upon the Governor-
General by the Letter Patent (section v.). They are also,
however, expressly granted by the Constitution itself
(section 5), and the powers of dissolving and summoning
the Parliament are the subject of important provisions. .
After any general election the Parliament shall be sum-
moned to meet not later than thirty days after the day
appointed for the return of the writs (section 5), and there
is to be a session of the Parliament once at least in every
year, "so that twelve months shall not intervene' between
the last sitting of the Parliament in one session and its first
sitting in the next session " (section 6). The first Parlia-
ment of the Commonwealth was to be summoned to meet
not later than six months after the establishment of the
Commonwealth.^ As to the dissolution of the Parliament,
that extends in the ordinary case only to the House of
Representatives (section 5) ; but in the special case of a
*' deadlock," both Houses may be dissolved (section 57).

2. He recommends to the House in which the proposal

1 Cameron v. Kyte, 3 Knapp, 332 ; Hill v. Bigge, 3 Moore, P.C. 476. For
the legal liability of a Colonial Governor, see Anson, vol. ii., pp. 262-3,
and cases there referred to.

2 The first Parliament of the Commonwealth was opened by H.R.H. the
Duke of Cornwall and York, on Thursday, May 9th, 1901, as Commissioner
appointed by the King under Letters Patent of February 23rd, 1901.

THE OOVERNOR-OENERAL. 95

originates, votes, resolutions, or proposed laws for the
appropriation of revenue or monies (section 56).

3. He assents to legislation (sections 58, 128) in the
Queen's name.

In the exercise of these powers the Governor-General will
generally, but not necessarily nor always, act on the advice
of his Ministers. As to the summoning of the Parliament,
he is in this as in other matters the guardian of the law,
and should see that it meets at the proper times. As to the
power of dissolution, that has always been the most difficult
and delicate of a Governor's powers in a self-governing
colony ; and is the one matter in which governors always
exercise a. personal discretion which not infrequently leads
them to refuse a dissolution. The principle which has been
acted- upon is that with the short Parliaments in the
colonies, a dissolution should, save in special circum-
stances, be resorted to only when it is clear that in no other
way can government be carried on.^

The provisions of section 58 relating to the Royal Assent
to Bills are taken from the British North America Act,
1867, section 55, with an important difference. The
Governor-General is to exercise his powers of assenting,
withholding the Royal Assent, or reserving "according to
his discretion, but subject to this Constitution." " Accord-
ing to his discretion " raises the consideration of two matters
by which the discretion of the Governor-General may be
guided — the Royal Instructions and the advice of his Minis-
ters. As to the Royal Instructions, it has been doubted
whether a law assented to by a Governor would not in all
cases be valid, notwithstanding that such assent was given
contrary to the terms of the Instructions. The Constitution
Acts of the Australian Colonies, however, made the observ-
ance of the Instructions a condition of validity,^ though as
the Instructions themselves gave the Governor a discretion-
ary power to assent to any Bill in case he should be of

^ See the whole subject discussed in Todd's Parliamentary Government in
the Colonies, cap. xvii., part iii., and especi^fUy the summary at pp. 800-803.
2 13 and 14 Vict., cap. 59.

96 THE PARLIAMENT.

opinion that an urgent necessity existed for bringing it into
operation, the result was that the non-reservation of a Bill
prescribed for reservation by the Royal Instructions only,
would not impair its validity. The British North America
Act, section 55, provides that when a Bill is presented to the
Governor-General for the Royal Assent, he shall declkre
" according to his discretion, but subject to the provisions of
this Act, and to Her Majesty's Instructions, either that he
assents," etc. The words " and to Her Majesty's Instruc-
tions" are omitted in the Commonwealth Constitution, and
there is no provision on the subject similar to that in the
Constitution Acts of the Australian Colonies.^ Section 58,
however, provides that the Governor-General shall declare
his assent, etc., according to his discretion, " but subject to
this Constitution " ; section 2, as has been seen, limits the
powers of the Governor-General to such " powers and func-
tions of the Queen as Her Majesty may be pleased to assign
to him " ; and it would seem to follow that if the Crown
forbids the Governor-General to assent to a particular mea-
sure, his assent will be invalid. A difficulty arises from the
fact that the limitation of power in section 2, like the grant
of power in section 58, is expressed to be "subject to this
Constitution." Another question arises as to the application
of the Colonial Law\s Validity Act, 1865, section 5 : — " No
colonial law, passed with the concurrence of or assented to
by the Governor of any Colony, or to be hereafter passed or
assented to, shall be or be deemed to have been void or
inoperative by reason only of any instructions with reference
to such law or the subject thereof by any instrument other
than the Letters Patent, or instrument authorizing such
Governor to concur in passing or to assent to laws for the
peace, order, and good government of such colony, even
though such instructions may be referred to in such letters
patent or last mentioned instrument." The question is, for
the present, without practical importance, for the Governor-
General's instructions contain no restrictions on the subject.
In assenting to or withholding assent from Bills, the
M3and 14 Vict., cap. 59.

THE SENATE. 97

Governor-General must first regard his duty as an Imperial
Officer. He must consult his instructions, and see whether
the measure is one which he ought to reserve. He must
then satisfy himself that the subject is one over which the
Commonwealth Parliament has power, and that the pro-
posed law does not conflict with any Imperial law in
operation in the Commonwealth. For this purpose, he will
probably receive a report from his Law Officers ; and if the
matter is of more than local importance, he may seek the
advice of the Imperial Law Officers. With these limita-
tions, it would seem that he ought to act upon the advice
of his Ministers.^ In any case where the Governor-General
assents to a Bill, the Crown may disallow the Act within
one year, and the law will then be annulled from the day
when the disallowance is made known (sec. 59).

There is one matter in which the Constitution itself
requires that proposed laws shall be reserved. Section 74,
which gives power to the Parliament to make laws limiting
the matters in which leave to appeal to the Crown in
Council may be asked, directs that every such proposed
law shall be reserved by the Governor-General for the
pleasure of the Crown.

The minor powers of the Governor-General in relation
to the Parliament will be considered with the matters to
which they relate.

B. THE SENATE.

The principal character of the Senate may be gathered
from the alternative names which were suggested for it —
the House of the States, the States Assembly. Though it
differs in many important respects from the Senate in the
United States and in the Dominion of Canada, it stands
like them for the federal principle in the Constitution.

* But see Todd, p. 169—" Whenever bills are tendered to the governor
of a colony for the purpose of receiving the Royal Assent, he is bound to
exercise his discretion in regard to the same, and to determine upon his
own responsibility as an Imperial Officer, unfettered by any consideration
of the advice which he has received from his own Ministers on the subject,
the course he ought to pursue in respect to such bills."

G

98 THE PARLIAMENT.

Every Original State has equal representation in the
Senate (sec. 7), a condition which was vigorously assailed
in the larger States. This equality can be varied only
by an amendment of the Constitution, and then only
with the consent of the electors of the State or States
whose "proportionate representation" it is proposed to
diminish (Section 128). In the first instance, each State
has six members ; but the Parliament may increase the
number. There is no power to diminish the number,
because it is part of the plan of the Constitution to set
up a numerical proportion between the Houses, and an
alteration of numbers might affect the balance of power.

As the Senate is to represent the States, it is fitly
provided that each State shall constitute one electorate ;
though this is a provision which the Parliament may
alter, and the Constitution itself makes special provision
for Queensland (sec. 7). These provisions may also be
regarded as a check upon localism in Commonwealth
politics; it is a common complaint of popular assemblies
that "they represent the nation too little and particular
districts too much." Large constituencies are in the
colonies a feature of the Second Chamber, where that
Chamber is elective. It is not impossible that, from the
mode of its constitution, the Senate may be more " national "
than the national Chamber itself.

Though federal in constitution, the Senate is, unlike the
German Bundesrath, unitary in action. It may proceed to
the despatch of business, notwithstanding the failure of
any State to provide for its representation in the Senate
(sec. 11). Until the Parliament otherwise provides, one
third of the whole number of the Senators makes a
quorum (sec. 22) without regard to the manner in which
that quorum is composed. Questions arising in the Senate
are determined by a majority of votes, and the voting is
personal and not according to States (sec. 23).

A condition which the Senate shares with Second
Chambers and Upper Houses in general is "perpetual
existence." Except in the event of deadlocks (sec. 57),

THE SENATE. 99

it is not liable to dissolution. Its members retire by-
rotation after six years' service (sec. 7), the length of
service of a Senator being double the term of the House
of Representatives. The rotation of Senators is to be
determined by the body itself as soon as practicable after
its first meeting, and after every dissolution (sec. 18), so
that half the Senators of each State in the first Senate
and every new Senate will retire at the end of three
years' service (sec. 13). Whenever the number of Senators
for a State is increased or diminished, the Parliament
may make such provision for the vacating of the places
of Senators for the State as it deems necessary to
maintain regularity in rotation (sec. 14).

The Senate is popular in the mode of its Constitution.
The Bill of 1891 followed the United States Constitution
in providing that Senators should be directly chosen by
the Houses of the Parliament of the several States. There
was nothing as to which there was more agreement than
that this system should give way to one which secured
immediate responsibility to the people. Senators are to
be directly chosen by the people of the States (sec. 7),
and the qualification of Senators and electors is not left
to the States to determine, but is uniform with that of
members and electors for the House of Representatives,
" but in the choosing of Senators each elector shall vote
only once" (sections 16, 8). Only in the case of casual
vacancies is the scheme of 1891 resorted to (sec. 15). The
provision for filling casual vacancies is curiously complex
and minute. The person chosen holds the seat until the
expiration of the term of the person whose seat he fills,
or until the election of a successor, whichever first happens.
If the State Parliament is not in session when the vacancy
is notified (by the President, or, if there is no President,
by the Governor-General, to the Governor of the State —
sec. 21), the Governor of the State, with the advice of
the Executive Council thereof, may appoint a person to
hold the place until 14 days after the beginning of the
next session of the State Parliament, or " until the election

100 THE PARLIAMENT.

of a successor, whichever first happens." The last-
mentioned condition of tenure is explained by a provision
that " at the next general election of members of the
House of Representatives, or at the next election of
Senators for the State, whichever first happens, a suc-
cessor shall, if the term has not then expired, be chosen
to hold the place until the expiration of the term'*
(sec. 15).

The Parliament may provide a uniform method of
electing Senators throughout the Commonwealth. Subject
to any such law, the State Parliaments may make laws
prescribing the method of choosing Senators (sec. 9).

The State Parliaments may make laws for determining
the times and places of elections of State Senators (sec.
9). The Commonwealth Parliament may make laws regu-
latinof the conduct of the Senate elections, but in default
of such provisions the State laws, for the '* more numerous
House of the Parliament of the State," shall, subject to
the Constitution, apply to Senate elections as nearly as
practicable (sec. 10).

The Governor of a State may cause writs to be issued
for the election of the State Senators; in case of the
dissolution of the Senate, the writs shall be issued within
ten days of the proclamation of the dissolution (sec. 12).

The Senate, before proceeding to the despatch of
business, and thereafter as occasion arises, is to choose
a Senator to be President (sec. 17). In the business of
the Senate, as in the House of Lords, the President has
a single ordinary vote, and no casting vote ; and in the
Senate, as in the Lords, when the votes are equal, the
question passes in the negative (sec. 23). The President
ceases to hold office (a) if he ceases to be a Senator,
(6) by a vote of the Senate removing him, or (c) by
resignation of his office or seat by writing addressed to
the Governor-General (sec. 17).

A Senator may resign his seat (sec. 19), and if he be
absent from the Senate without leave for two consecutive
months of any session of the Parliament his seat becomes

THE HOUSE OF REPRESENTATIVES. 101

vacant (sec. 20). His seat may also become vacant under
sections 44 and 45.

C. THE HOUSE OF REPEESENTATIVES.

The Constitution contains throughout elements which
suggest unity, and elements which suggest union merely.
Writers on the Constitution of the United States, which
presents the same phenomena, speak of these respectively
as the national and federal elements in the Constitution.
Using the terms in this sense, we have seen that the
Senate is the Federal Chamber; and we now come to
the House of Representatives, which is regarded as the
National Chamber. As the name "Commonwealth" has
been objected to on account of its Republican associations,
so the title " House of Representatives " has been criticised
as too American. It is not, however, altogether new in
Australian Constitutions. Earl Grey's Act of 1850, giving
Constitutions to all the Australian Colonies, empowered
them to substitute for their single-chambered legislature
*• a Council and House of Representatives." None of them
adopted the name House of Representatives ; but in New
Zealand the General Assembly does consist of a Council
and House of Representatives. There were sufficiently
good reasons for not following the Dominion of Canada
in establishing a " House of Commons " ; you cannot trans-
late the thing or its traditions, and without these the
name in Canada or Australia is meaningless or misleading.
If we look to history, we see that it is the Senate rather
than the House of Representatives which recalls the com-
munitas comynunitatum — the assembty of the organized
political communities. It is indeed a signal merit that
in the Senate the constituency is such an organized body,
and not a mere electoral district formed ad hoc. If we
look to practical politics we shall hardly find that the
Lower House can successfully maintain the same supremacy
which the House of Commons claims in England and
Canada.

The national character of the House, the federal character

102 THE PARLIAMENT.

of the Senate, are intended to be emphasized by the
different terms used in respect to their constitution. The
Senators are directly chosen by the people of the States
(sec. 7) ; the House is composed of members " directly
chosen by the people of the Commonwealth" (sec. 24).
But even in the case of the House the State is for many
incidental purposes an electoral unit.

The number of members of the House is regulated by
provisions which have reference to two matters — the dis-
tribution of seats, and the relation of the House to the
Senate.

By Section 24 the number of members chosen in the
several States is in proportion to the respective numbers
of their people; and until the Parliament otherwise pro-
vides, is determined whenever necessary as follows :

1. A quota is ascertained by dividing the number of the
people of the Commonwealth as shown by the latest
statistics of the Commonwealth, by twice the number of the
senators.

2. The number of members to be chosen is determined
by dividing the number of the people of the State, as shown
by the latest statistics of the Commonwealth, by the quota ;
and if on such division there is a remainder greater than
one half of the quota, one more member shall be chosen in
the State. But five members at least shall be chosen from
each Original State. By a provision suggested by the
Fourteenth Amendment (sec. 2) to the United States Con-
stitution, if the law of a State excludes the people of any
race from the franchise, such race is not to be reckoned
in computing the population of the State (sec. 25).

The distribution of seats among the States is thus
subject to change. The total number of seats in the
House, however, bears a fixed relation to the number
in the Senate — the number of members is as nearly as
practicable twice the number of the Senators (sec. 24).
This provision has more than one reason. In the first place
it was inserted with a view to measuring the strength of
the Houses on a joint sitting should that ever be necessary ;

TEE HOUSE OF REPRESENTATIVES. 103

and in the end the scheme for avoiding deadlocks does
involve such a joint sitting. In the second place it serves
to maintain the tradition of the Lower House as " the more
numerous House," and at the same time it maintains the
relative proportions of the Houses which without it might
be upset by the increase of members of the House of
Representatives which may become advisable by the in-
crease of population. It will be remembered that the
Parliament may increase or diminish the number of senators,
but cannot diminish the representation of Original States
below the present number — six (sec. 7).

The representation to which each State was entitled in
1900 was ascertained during the passage of the Bill through
the Imperial Parliament, and section 26 provides for the
number of members to be returned from each State at the
first election as follows :

New South Wales, 26

Victoria, 23

Queensland, ....... 9

South Australia, ...... 7

Western Australia, 5

Tasmania, 5

" Subject to this Constitution," the Parliament may make
laws for increasing or diminishing the numbers of the
members of the House (sec. 27) — i.e. so that it does not alter
the proportion of members to Senators, and does not bring
the number of member^ returned from an original State
below five. By section 128 no alteration of the Constitution
altering the proportionate representation or the minimum
number of representatives of a State in the House shall
become law unless the majority of the electors voting in
that State approve the proposed law.

In respect to the constitution of electoral divisions there
are three possibilities. The Commonwealth Parliament
may provide ; in default of any provision, the State Parlia-
ment " may make laws for determining the divisions in each
State for which members may be chosen, and the number
of members to be chosen for each division," but a division is

104 THE PARLIAMENT.

not to be formed ^ out of parts of different states. In the
absence of provision by Commonwealth or State each state
is to be one electorate (sec. 29). Under the powers of this
section and sec. iv. of the Act, four of the States passed
laws dealing with this subject; but at the first general
election South Australia and Tasmania voted as single
electorates.^

Any provision corresponding with that referring to the
Senate under which the House may proceed to business,
notwithstanding the failure of a State to provide for its
representation, is of course unnecessary in relation to a
national chamber; and it has been thought unnecessary
to provide directly for the failure of electoral divisions to
return members. By sec. 39, until the Parliament other-
wise provides, the presence of one-third of the whole
number of the members of the House is necessary to
constitute a meeting of the House for the exercise of
its powers. In respect to its duration, the House is
assimilated to the popular House in all British colonies.
It is liable to dissolution by the head of the Govern-
ment— the Governor-General — and if not dissolved it
expires three years after its first meeting^ (sec. 28).
(Three years is the term assigned to the Lower House in all
the Australian Colonies, except Western Australia, where it
is four years.) The House has thus no permanent existence,
and it is made of course more sensitive to public opinion
than the Senate by the fact that a general election sends all
the members to their constituents at the same time.

The Governor-General may cause writs to be issued for
general elections, and after the first general election writs
shall be issued within ten days from the expiry of the
House, or the proclamation of a dissolution (sec. 32). Casual

^ Qrmere, by the State only ?

2 In Tasmania a modified form of the Hare system of proportional repre-
sentation was used. For an account of it see The New Democracy
(Chapter iii. ), by Professor Jethro Brown,

•^A Colonial Legislature is not dissolved by a demise of the Crown —
Devine v. Hollowayy 14 Moo. P.C. 290.

QUALIFICATIONS OF ELECTORS AND MEMBERS. 105

vacancies are filled by election on the writ of the Speaker,
or, in his absence, of the Governor-General (sec. 33). Until
the Parliament otherwise provides, but subject to the Con-
stitution, the laws in force in the States respectively
regulating the conduct of State elections for the "more
numerous House" are to govern the conduct of elections
for the House of Representatives (sec. 31). A member
may resign his seat (s^c. 37) ; and his seat becomes vacant
if for two consecutive months of any session, without leave,
he fails to attend the House (sec. 38).

The House, before proceeding to the despatch of business
and as often as occasion arises, must choose a member to be
Speaker. The Speaker ceases to hold his oflBlce {a) if he
ceases to be a member, or (6) if he be removed by a vote of
the House, or (c) if he resign his office or his seat (sec 35).

Questions arising in the House of Representatives are
determined by a majority of votes, and the Speaker has no
ordinary vote, but has a casting vote where the numbers are
equal (sec. 40).

QUALIFICATIONS OF ELECTORS AND MEMBERS OF THE
SENATE AND HOUSE OF KEPRESENTATIVES.

The Constitution assimilates these qualifications (sections
8, 16). Some of the qualifications are dealt with in the
Constitution under the head of " the House of Representa-
tives," others under " Both Houses of the Parliament."

In regard to the qualification of electors and members
alike, it is a striking feature of the Constitution that it
gives power to the Commonwealth over each ; and this
power was accorded in recognition of the fact that it was
impossible to regard such matters as purely of state concern.
The qualifications of electors and members therefore may be
prescribed by the Parliament ; and the provisions of sections
30 and 34 are only until provision is made by the Parlia-
ment. The power of the Parliament is, however, limited by
conditions, of which the first is that the qualification for
members and electors is the same for the Senate as the

106 THE PARLIAMENT.

House ; while as to electors, the provisions of sections 8, 30,
and 41 are designed to secure the " democratic " principle
that the suffrage shall be of the widest, and that no person
shall have more than one vote.

ELECTORS.

Section 30. Until the Parliament otherwise provides,
the qualification of electors of members of the House of
Representatives shall be in each State that which is pre-
scribed by the law of the State as the qualification of
electors of the more numerous House of Parliament of the
State ; but in the choosing of members each elector shall
vote only once.

Section 8. The qualification of electors of senators shall
be in each State that which is prescribed by this Constitu-
tion or by the Parliament as the qualification for electors
of members of the House of Representatives ; but in the
choosing of senators each elector shall vote only once.

On these sections the following observations may be
made :

1. In sec. 30, the words, " until the Parliament otherwise
provides," carry under sec. 51, art. xxxvi., the power to pro-
vide from time to time.

2. The reference to the more numerous House of Parlia-
ment of the State is taken from the United States Con-
stitution, where the federal franchise is regulated by the
provision that " the electors in each State shall have the
qualification requisite for electors of the most numerous
branch of the State Legislature." In those States of the
Commonwealth in which both Houses are elective, the law
of the State has fixed the number of representatives in each
House, and has always provided that the Lower House shall
contain a number of members which is substantially larger
than that in the Upper House. In New South Wales and
Queensland the Upper House is nominated, not elected, and
the number of members is by law unlimited. The present
electoral qualifications in the States vary considerably. In

QUALIFICATIONS OF ELECTORS. 107

all the States electors must be British subjects, 21 years of
age or over, and there are certain conditions of residence.

New South Wales (Parliamentary Electorates and Elec-
tions Act, 1898). — Manhood suffrage, the elector voting in
the division of the electoral district in which he resides.

Victoria (Constitution Act Amendment Act, 1890
and 1899). — Manhood suffrage, the elector voting in the
district in which he resides ; all persons on the ratepayers'
roll; freehold property of the value of £50 or of the
annual value of £5. Since . 1899, though a person may
be on the roll in various electoral districts, in virtue of
his various qualifications, and entitled, therefore, to vote
in any one of them, he may not vote more than once.

Queensland (The Elections Acts, 1885 to 1897 — a con-
solidation).— Manhood suffrage, the elector voting where he
resides. Leasehold occupation, or freehold or leasehold
estate, or pastoral licence of specified value. An elector
may vote in any number of electoral districts in which
he may have a qualification, but not more than once in any
particular district.

South Australia (Electoral Code, 1896). — Adult suffrage,
the elector voting where he resides.

Western Australia (Constitution Acts Amendment
Acts, 1899 and 1900). — Adult suffrage ; freehold, leasehold,
household, or Crown lease or licence of certain value,
exerciseable as in Queensland.

Tasmania (Constitution Amendment Act, 1896, No. 2 ;
Electoral Act, 1896, and Electoral Continuation and
Amendment Act, 1899). — Men in receipt of income of
£40 a-year have a vote in the district in which they
reside; ratepaying qualifications exerciseable wherever the
qualification exists.

3. The provision that in the choosing of members each
elector shall vote only once, seems clearly to run throughout
the Commonwealth and to prohibit an elector from voting
more than once, whether in the same State or in different
States.

4. There is room for some doubt whether the provisions

108 THE PARLIAMENT.

of sec. 30 against plural voting applies to the suffrage
under a law of the Commonwealth Parliament as well as
to a State law. It is not clear whether the controlling words
are " Until the Parliament otherwise provides " or " but in
the choosing of members each elector shall vote only once."
It is submitted that the latter words govern the power of
the Parliament. The similar prohibition in sec. 8 regarding
the Senate clearly binds the Parliament, and by that section
the Constitution has prescribed uniformity in the qualifica-
tions of electors for the two Houses.

5. In speaking of the qualification " which is prescribed
by the law of the State," does the Constitution mean the
qualification as prescribed from time to time ? The pro-
vision of the United States Constitution certainl}^ does
mean that ; but in the United States the federal suffrage
is treated as a matter for State regulation, and Congress
has no power over it, save under the Amendments, to
prevent abuses by the State. In the Commonwealth the
suffrage is treated as a national matter, and in the absence
of any words of futurity (such, for instance, as are con-
tained in section 31, the " laws in force in each State
for the time being"), it is reasonable to suppose that the
qualification referred to is that existing at the establish-
ment of the Commonwealth.

If this view be correct, section 41, which imposes an
important limitation upon the power of the Parliament,
is shorn of some of its difficulties. Section 41 provides
that " No adult person who has or acquires a right to
vote at elections for the more numerous House of the
Parliament of a State, shall, while the right continues, be
prevented by any law of the Commonwealth from voting
at elections for either House of the Parliament of the
Commonwealth." As has been seen, two of the States —
South Australia and Western Australia — have adopted
adult suffrage, in which they followed the lead of New
Zealand, also a possible State. " Women's suffrage," too,
was being strongly pressed upon the Legislatures of New
South Wales and Victoria. Accordingly, a concession was

QUALIFICATIONS OF ELECTORS. 109

made to the States, which should, in its political operation,
facilitate the adoption in regard to each State of its own
policy. For it is clear that the preservation of rights in
States where they have been acquired will more readily
reconcile those States to a Commonwealth law which
accords with the policy of those States which have not
adopted women's suffrage.

If the true construction of section 30 be the ''law in
force in each State at the establishment of the Common-
wealth," then under section 41 any person who at that
time has, or who at any time afterwards acquires a right
under that law to vote for the more numerous House of the
State Parliament, may vote in federal elections, whatever
law be established by the Commonwealth Parliament. If,
on the other hand, section 30 means laws enacted by the
State Parliament at any time before the establishment of a
federal franchise by the Commonwealth Parliament, section
41 presents some difficulties of construction.! It would pro-
bably mean has at the establishment of the federal franchise
or acquires at any time afterwards under a State law in
force at the establishment of the federal franchise.

^Section 41 is fully discussed by Messrs. Quick and Garran, The
Annotated Constitution of the Australian Commonwealth, pp. 483-7.
The learned authors are of opinion that "has or acquires " means has at
the establishment of the Commonwealth or acquires before the framing of
the federal franchise by the Commonwealth Parliament ; and are further
of opinion that ' ' a right to vote " means a right completely acquired by
the individual. Accordingly, persons who become entitled to vote in
State elections after the passing of the Commonwealth law, are not within
the saving of the section, though the State law itself was passed before
the Commonwealth law. But such an operation of the law would be so
partial and anomalous as to constitute a strong reason for rejecting
altogether the limitation of time. The protection of the section only
operates "while the right continues," and it is not the case under the
law of any one of the States that a right to vote once acquired by an
individual is perpetual : its continuance depends upon many circumstances,
some of which are bound to change, so that the right to vote lapses and is
renewed. For instance, the " elector's right," which plays so large a part
in the constitutional law of the colonies, is good for a limited time only,
and then expires. There would be a constant process of extinction of
right under the State law.

110 THE PARLIAMENT.

QUALIFICATIONS OF MEMBERS.

By section 16, the qualifications for a Senator are the
same as those of a member of the House, and by section
34 it is enacted that the Parliament may deal with the
qualifications of a member of the House, but until the-
Parliament has provided otherwise:

i. He must be {a) of the full age of 21 years, and
must be (b) an elector entitled to vote at the election of
members of the House of Eepresentatives, or a person
qualified to become such elector, and (c) must have been
for three years at the least a resident within the limits
of the Commonwealth as existing at the time when he is
chosen.

ii. He must be a subject of the Queen, either natural
born or for at least five years naturalized under a law of
the United Kingdom or of a colony which has become,
or becomes, a State, or of the Commonwealth or a
State. 1

^ A question which may become of practical importance arises as to the
eligibility of women electors for membership. The words of the section
are words of the masculine gender, but under the Interpretation Act of
1889, sec. 1, in every Act passed after 1850 (the date of Lord Brougham's
Act, containing similar provisions), unless the contrary intention appears,
words importing the masculine gender include females. The application
of that doctrine to public functions has been considered in England in
two cases — Ghorlton v. Lings, L.R., 4 C.P. 374, which dealt with the
claim of women to vote at Parliamentary elections under the Representa-
tion of the People Act, 1867 ; and Beresford-Hope v. Sandhurst, 23 Q.B.D.
79, which related to the eligibility of women for membership of the County
Council under the Local Government Act of 1888. In the latter case it
was admitted that, as the result of various enactments, women might be
on the burgess roll and might vote at municipal elections. The Municipal
Corporations Act, which was made applicable to the London County
Council, provided, by section 11, sub-sec. 2, that "a person shall not
be qualified to be elected or to be a councillor unless he is enrolled, and
entitled to be enrolled, as a burgess." It was contended that as a woman
might be a burgess, and as words of the masculine gender included
females, Lady Sandhurst was eligible as a councillor. The Court of
A.ppeal decided against the claim, but (in the cases of Coleridge, L.C.J. ,
and Cotton, Lindley, Fry, and Lopes, L.JJ.) on the ground that the
application of Brougham's Act was excluded by section 63 of the Muni-
cipal Corporations Act, whereby: " For all purposes connected with, and

DISQUALIFICATIONS FOR MEMBERSHIP. Ill

DISQUALIFICATIONS FOR MEMBERSHIP.

Section 43. A member of either House of the Parliament
is incapable of being chosen or of sitting as a member of
the other House.

Section 44. Any person who

i. Is under any acknowledgment of allegiance, obedi-
ence, or adherence to a foreign power, or is a subject or
a citizen, or is entitled to the rights or privileges of a
subject or a citizen of a foreign Power ; ^ or

ii. Is attainted of treason or has been convicted and is
under sentence or subject to be sentenced for any offence

having reference to, the right to vote at municipal elections, words in
this Act importing the masculine gender include women," a provision
which must be confined in its operation to the matter dealt with — the
right to vote. Lord Esher, however (and the Divisional Court, from
which the appeal was taken), decided the case on the broader ground,
supported by the dicta in Chorlton v. Lings, that "neither by the common
law nor the constitution of this country, from the beginning of the
common law until now, can a woman be entitled to exercise any public
function " (p. 96), and '* when you have a statute which deals with the
exercise of public functions, unless that statute expressly gives power
to women to exercise them, it is to be taken that the true construction
is that the powers given are confined to men, and that Lord Brougham's
Act does not apply " (p. 96). There is no provision in the Constitution
such as that on which the majority of the Court of Appeal relied for
taking the case out of Lord Brougham's Act, and Lord Esher stood alone
in the Court in taking the broader view of exclusion. The conclusion
appears to be that women electors are qualified to be members of either
House. If women are eligible by reason of a State law making them
electors, it seems clear that those women electors are eligible for election
in any part of the Commonwealth, and are not confined to the State
in which they are electors. In the second place, it seems equally clear
that they may be disqualified by an Act of the Commonwealth Parlia-
ment, since sec. 34 does not declare that all electors may be members, but
merely enacts that, "until the Parliament otherwise provides," amongst
other conditions, all members shall be electors or persons qualified to
become electors.

^ This seems unnecessarily stringent, and may produce unexpected
disqualifications. There are many states in which the right to trade
or to hold land is a right or privilege of the subject in the sense that
the foreigner is excluded from it. Is a British subject, who obtains from
a foreign Power a license to trade or to hold land, within the disqualifi-
cation ?

112 THE PARLIAMENT.

punishable under the law of the Commonwealth, or of a
State by imprisonment for one year or longer ; or

iii. Is an undischarged bankrupt or insolvent ; or

iv. Holds any office of profit under the Crown, or any
pension payable during the pleasure of the Crown out of
any of the revenues of the Commonwealth ; or

V. Has any direct or indirect pecuniary interest in any
agreement with the public service of the Commonwealth,
otherwise than as a member and in common with the other
members of 'an incorporated company consisting of more
than twenty-five persons :

Shall be incapable of being chosen or of sitting as a
Senator or Member of the House of Representatives.

These disqualifications require little explanation. Sub-
section iv. is dealt with in the section itself by a provision
that it does not apply to the office of (a) any of the Queen's
Ministers of State for the Commonwealth ; or (h) any of the
Queen's Ministers for a State ; or (c) to the receipt of pay,
half-pay, or a pension as an officer or member of the Queen's
navy or army ; or {d) to the receipt of pay as an officer or
member of the naval or military forces of the Commonwealth
by any person whose services are not wholly employed by
the Commonwealth. Sub-section iv. does, however, apply
generally to offices of profit in the States other than the
excepted offices, and is not confined to offices of profit held
of the Crown in right of Commonwealth or State.

A member of either House vacates his seat if he becomes
subject to aoy of the disabilities mentioned in section 44, or
if he takes the benefit, whether by assignment, composition,
or otherwise, of any law relating to bankrupt or insolvent
debtors ; or " directly or indirectly takes or agrees to take
any fee or honorarium for services rendered to the Common-
wealth," or for services rendered in the Parliament to any
person or State (sec. 45).

Until the Parliament otherwise provides, any person
declared by the Constitution to be incapable of sitting as a
member of either House is liable, for every day on which
he so sits, to pay £100 to any person who sues for it in

THE TWO HOUSES. 113

a court of competent jurisdiction. It is noteworthy that the
Constitution does not disqualify members of the State
Parliaments from being members of the Commonwealth
Parliament. The State Parliaments, however, have already
passed Acts which disqualify members of the Common-
wealth Parliament from sitting in the State Parliament.
In so doiDg they have followed the examples of the States
in America, and have acted on the principle that a seat in
Parliament is a seat to which the familiar doctrine "one
man, one billet " applies.

BOTH HOUSES OF THE PAKLIAMENT.

Several of the provisions under this head have been
already considered.

By section 42 every member must complete his title
by making and subscribing an oath or affirmation of
allegiance in the form set out in the schedule to the
Constitution.

By section 47 any question respecting the qualifications
of members, or respecting a vacancy in either House, and
any question of a disputed election, is determined by the
House in which the question arises. The Parliament may,
however, provide otherwise. By section 48 the members of
each House receive an allowance of £400 a year, to be
reckoned from the day on which they take their seats. In
all the States members of the Lower House are paid a
salary,^ " allowances," or " re-imbursement of expenses "
varying from £100 to £300 per annum with railway passes
and other privileges. Only in South Australia, Tasmania,
and Western Australia are members of the Legislative
Council paid a salary, but they have in all the States the
same privileges of travelling as members of the Lower
House. The payment of members of the Commonwealth
Parliament is under no constitutional guarantee: the
Parliament may abolish it or alter the amount.

^Payment of members was introduced into Western Australia only in
1900.

H

114 THE PARLIAMENT.

PEIVILEGE OF THE PARLIAMENT.

It has long been settled that the lex et consuetudo
Parliamenti does not apply to Colonial Legislatures.^
While the Chambers of such a Legislature have " every
power reasonably necessary for the proper exercise of their
functions and duties, powers such as are necessary to the
existence of such a body and the proper exercise of the
functions which it is intended to execute," this does not
extend to nor justify punitive action. Accordingly, the
Constitution Acts of most of the colonies have authorised
the Legislature or the Houses respectively to supply this
defect in their power.^ The Legislature of Victoria having
adopted for each House and for the Committees and
members thereof the powers, privileges, and immunities
of the House of Commons, it was held by the Privy Council
that the doctrine of the English privilege cases applied, and
that where a person was committed by order of the
Legislative Assembly for contempt, there was no power in
the Courts to examine the cause of contempt.^

The Constitution proceeds at once to oust the common
law doctrine from application to the Parliament. "The
powers, privileges, and immunities of the Senate and the
House of Representatives and of the members and com-
mittees of each House shall be such as are declared by the
Parliament, and until declared shall be those of the
Commons House of Parliament of the United Kingdom and
of its members and committees, at the establishment of the
Commonwealth " (sec. 49).* The Parliament has thus plenary

^See Kielley v. Carson, 4 Moo. P.C. 63; Doyle v. FcUconer, L.R., 1
P.C. 328; Barton v. Taylor, 11 A.C. 197. See Forsyth's Cases and}
Opinions on Constitutional Law, p. 25.

^ Victoria, Constitution Act, 1855, sec. 35 ; South Australia, Constitu-
tion Act, 1855-6, No. 2, sec. 35 ; British North America Act, 1867, sec.;]
18, and the Parliament of Canada Act, 1875 ; New South Wales Constitu-
tion Act, 1855, sec. 35.

^ Dill v. Murphy,! Moo. P.C.N.S. 487; Speaker of Legislative Assembly
of Victoria v. Glass, L.R., 3 P.C. 560.

^For Privileges of the House of Commons, see Anson, vol. i., and May'i
Parliamentary Practice.

PROCEDURE. 115

power over the subject, untrammelled by the condition
that privileges shall not exceed those of the House of
Commons at the date of the Constitution Acts respectively,
as in the case of the other Australian Acts, or at the date of
the Act conferring the privileges, as in Canada.

' PROCEDURE.

Under section 50, each House separately, or the two
Houses in conjunction, may make rules and orders for the
conduct of its or their business and proceedings. The same
section contains a provision that each House may make
rules and orders with respect to " the mode in which its
powers, privileges, and immunities may be exercised and
upheld." These are somewhat startling terms, and on the
face of them would justify the House in establishing appro-
priate penalties for breach of privilege. The term " powers,
privileges, and immunities," however, includes the sanctions
which are available to each House, and therefore it is con-
jectured that " mode " relates exclusively to what may be
called procedure — the "machinery as distinguished from the
product."

The procedure in legislation is to some extent regulated
by the Constitution itself The provisions affecting the
Royal Assent (sections 58-60) have been already referred to.
The proceedings in regard to Money Bills, so far as they
concern the relations of the Senate and the House, are con-
sidered in the next chapter. The provision requiring the
recommendation of money votes by the Governor-General
may be here referred to. It is an essential part of our Par-
liamentary system that every grant of money for the public
service shall be based upon the request or recommendation
of the Crown. "The foundation for all Parliamentary
taxation is its necessity for the public service as declared by
the Crown through its Constitutional advisers."^ This
principle fixes upon the Ministry a definite responsibility
for the national finance, which acts as a safeguard against
Parliamentary recklessness. The absence of such a rule in

^ May, Parliamentary Practice, cap. xxii.

116 THE PARLIAMENT.

the colonies was regarded by Lord Durham as one of the
principal factors in the ill-government of Canada ; com-
petent observers to-day notice the financial chaos in France
and Italy as a consequence of the neglect of this rule. Ever
since the introduction of responsible government into the
colonies, the rule has in one form or other found a place in
colonial constitutions. Consistently, therefore, it is pro-
vided in the Constitution that " a vote, resolution, or pro-
posed law for the appropriation of revenues or monies shall
not be passed unless the purpose of the appropriation has
in the same session been recommended by message of the
Governor-General to the House in which the proposal
originated" (section 56). This provision must, like so
much else that belongs to our system of Parliamentary
government, be supplemented by conventional rules such as
exist in the House of Commons as to the origination of
laws imposing taxation, and the prohibition of the increase
of the amount asked for by the Crown.

CHAPTER VIL

THE RELATIONS OF THE SENATE AND THE
HOUSE OF REPRESENTATIVES.

In the working of responsible government in the colonies,
we are accustomed to such a constitution of the two Houses
of the Legislature as ensures the supremacy of the Lower
House. The colonies are democratic communities, and the
Legislative Councils sin against the current doctrines of
democracy in that they are constituted by nomination and
not election, or, if they are elective bodies, their members
generally require some qualification of property, and are
always elected by a " select " constituency ; while they are
not by dissolution made readily responsive to public
opinion. The Assembly, always elected on the broadest
basis of qualification both for the members and electors, and
frequently reconstituted by a general election, is the pre-
dominant power, because it harmonizes, and the Legislative
Council does not, with the national life and spirit.

These conditions are not fully reproduced in the Common-
wealth Government. The Constitution described in the
last chapter shows us two Chambers, each elected upon a
popular basis, uniform alike in the qualification for members
and for electors ; and the provision for payment of salaries
equal in amount to Senators and Members of the House
leaves no room for the suggestion of social exclusiveness as
a mark of distinction between them.

Thus popularly constituted as the House itself, the

118 SENATE AND HOUSE OF REPRESENTATIVES.

Senate represents an essential principle of Union — it is the
House of States in a Federal Commonwealth. It is true
that neither in Canada nor in Switzerland does the House
of the States exercise an equal power with the other House,
but in both cases there are circumstances of constitution —
in Canada, the nomination of members and the imperfection
of the States' principle ; in Switzerland, the small number
of members and the want of any single principle of
constitution — which have determined for it an inferior
position.^

The other circumstances of constitution which may affect
the position of the Senate in the Government are its perma-
nent existence as a body and the longer tenure of its members.
These are conditions which are commonly believed to be
a check upon "democratic recklessness"; they are the
especial marks of the "revising" and "retarding" Chamber,
the " Second Chamber," or " Upper House."

The circumstance which most closely touches the relation
of the two Houses of the Parliament is the introduction of
Cabinet Government, with its tradition of the supremacy
of one House through the control of finance. The constitu-
tion seeks to reproduce the main features of this familiar
relation in two ways: (1) by provisions as to Money Bills ;
(2) by a novel provision for deadlocks.

REVENUE AND APPROPRIATION LAWS.

This matter is dealt with by sections 53 to 56. Sections
53 to 55 seek to define with more detail and precision than
is customary in constitutions the powers of the two
Chambers of the Legislature respectively, a matter which
has in all the colonies been one of controversy, and in some |
has produced conflicts of so much heat as to involve i
Governor, Ministry, and both Houses of the Legislature
in discredit. The attempt to translate to the colonies th<
traditions of the Lords and Commons has hardly succeeded'

1 Even in Switzerland, the Council of States exercises considerable
power, and has not been relegated to that condition of subordination found
in the Upper House of countries where the Cabinet system exists.

REVENUE AND APPROPRIATION LA WS. 119

even where the Legislative Council has been a nominee body ;
where the Legislative Council has been elective, there has
been more than a plausible ground for standing purely upon
the law of the Constitution, a law which, reproducing often
clumsily and in ill-chosen words some of the conventional
rules which are observed by the Lords and Commons, has
been silent as to others. In the Commonwealth the Senate
is more than the Legislative Council of a colony ; not
merely elected, it rests upon the the same popular basis as
the House of Representatives, and its constitution charges
it with the protection of interests which might not be those
represented by the majority of the House. On the other
hand, the States contribute to and receive from the
Commonwealth upon a population basis, and the House of
Representatives is broadly speaking the representative of
population. While the House of Representatives cannot
claim that Parliamentary supplies are made good by theii
sole constituents, they can evidently claim a larger powei
than can the Senate. These are the conditions which
underlie sections 53 to 55.

53. Proposed laws appropriating revenue or moneys, or
imposing taxation, shall not originate in the Senate.
But a proposed law shall not be taken to appropriate
revenue or moneys, or to impose taxation, by reason only
of its containing provisions for the imposition or ap-
propriation of fines or other pecuniary penalties, or for
the demand, or payment, or appropriation of fees for
licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing
taxation, or proposed laws appropriating revenue or moneys
for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to
increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of
Representatives any proposed law which the Senate may
not amend, requesting, by message, the omission or
amendment of any items or provisions therein. And the
House of Representatives may, if it thinks fit, make

120 SENATE AND HOUSE OF REPRESENTATIVES.

any of such omissions or amendments, with or without
modifications.

Except as provided in this section, the Senate shall
have equal power with the House of Representatives in
respect of all proposed laws.

54. The proposed law, which appropriates revenue or
moneys for the ordinary annual services of the Govem-
nent, shall deal only with such appropriation.

55. Laws imposing taxation shall deal only with the
imposition of taxation, and any provision therein dealing
with any other matter shall be of no effect.

Laws imposing taxation, except laws imposing duties of
customs or of excise, shall deal with one subject of taxa-
tion only ; but laws imposing duties of customs shall deal
with duties of customs only, and laws imposing duties of
excise shall deal with duties of excise only.

In section 53 the Constitution avoids the ambiguous
words "for appropriating" of the Constitution Acts of the
colonies, and adopts a word expressive of the most extensive
power claimed by the Lower House. The words following,
however, while preserving the initiation of measures of
finance to the Lower House, make provision against
certain inconveniences which would attend the strict appli-
cation of the rule. The exclusion of fees and penalties
from the rule is suggested by the Standing Order of the
House of Commons of July 24th, 1849.

The succeeding paragraphs of the section are suggested
by certain resolutions adopted by the Council and Assembly
in South Australia, and known as " The Compact of 1857.'
Unlike the Constitution Acts of some of the colonies, the
Constitution Act of South Australia (No. 2 of 1855-6)
made no special provision as to Money Bills save as to
their recommendation to the Assembly by the Governor.
Conflicts between the Council and Assembly as to their
respective powers, in other colonies postponed for a time,
began in South Australia at once. In the result, the
Council waived its claim to deal with the details of the
ordinary annual expenses of the Government submitted in

REVENUE AND APPROPRIATION LA WS. 121

an Appropriation Bill in the usual form, but reserved the
right to demand a conference thereon, to state objections
and to hear explanations. As to other Bills, the object of
which was to raise money or to authorize the expenditure
of money, the Council asserted its competence to suggest
alterations to the Assembly, and to assent to or reject
such measures. These resolutions were agreed to by the
Assembly.

It will be observed that in section 53 the prohibition
of amendment by the Senate is not co-extensive with the
provision as to origination, so far as concerns proposed laws
appropriating revenue or moneys. While all proposed laws
appropriating revenue or moneys, save those specially
excepted in the first clause, must originate in th^ House,
the Senate is restrained from amending none but the pro-
posed law for appropriating revenue or moneys for the
ordinary annual services of the Government. But in no
case must the power of amendment be exercised by the
Senate so as to increase a proposed charge or burden on
the people. Where the power of amendment is denied, the
power of suggestion is given to the Senate, and as such
suggestion may be made " at any stage " in the progress of
the Bill through the Senate, it is clear that the Senate may
exercise the extreme power of rejection if its suggestions
are not adopted.

The last clause in section 53 has a political rather than a
legal importance. Australian experience has abundantly
shown that no opinion upon financial powers is too wild to
obtain some currency ; and, therefore, it may not have been
superfluous to insert words showing that the powers con-
ferred by section 53 upon the Senate do not exhaust the
powers of that body over Money Bills — that the section in
general is not one granting new power, but limiting and
directing the exercise of power already enjoyed.

Sections 54 and 55 are auxiliary sections designed to
secure the arrangements of section 53. They prevent
"tacking" in its most objectionable forms; they also
deprive the House of the power of eff*ectuating its control

^ 122 SENATE AND HOUSE OF REPRESENTATIVES.

over finance by including the whole of the financial
measures for the year in one bill — the course -hinted at
by the Commons resolutions of 1860, and often adopted in
the colonies for the purpose of compelling the Upper
House to accept an unwelcome measure. The great
resource of the Commons, however, depends for its efficacy
upon a tradition which has not equal force in the colonies
— that the Upper House will not embarrass the Crown by
refusing to pass an Appropriation Act. In Australia, a
Legislative Council, by rejecting an Appropriation Bill,
merely embarrasses its political opponents, and has not
hesitated thus to deal with attempts to deprive it of power
over such matters as the tariff or payment of members. In
fact, the old constitutional weapon — the refusal of supplies
4-is in new hands, and may be made to serve a new
pjarpose. The control of the Lower House over the policy
\ \ oj^§i)^^^/I!rown and its Ministers is now so complete that the
problem <ii modern governments is rather now to protect
the Govei'ijjiient from the caprice of the House than to
secure furtl^er .control ; it is never necessary for the House
to fall b^iik upon the source of its power. But the
responsib^fity of the Ministry to* the Upper House, if it
exists, is^of a very indirect kind,® and one of the checks
upon the Ministry and the Lower House lies in the fact
tha£ tne Upper House might in an extreme case refuse to .
pass the Appropriation Bill, and thereby force a dissolution

, or a change of Ministry. These are the conditions recog-
nized by the Constitution. It marks the province of the
Senate in financial matters, and prevents the House of
Kepreseiitatives from taking a course which might justify
' or excqse the Senate in reje(^bg an Appropriation Bill.
In the balance of power in the Commonwealth, it is a
factor not to be neglected that, while the Senate has a |

, recognized power over Money Bills beyond that of any
other Second Chamber in the British Dominions, it can
hardly exercise the extreme power of rejecting the Bill for
the " ordinary annual services of the Government " upon
any other ground than that the Ministry owes Responsibility

REVENUE AND APPROPIUA TION LA WS. 123

to the Upper not less than to the Lower House. That
is a position which in the future the Senate, as the
House of the States as well as the Second Chamber, may
take up ; but it is a position from which, even in the
history of Parliamentary Government in the colonies, the
strongest supporters of the Upper House have generally
shrunk.

There is one matter which from the very nature of the
Senate is its special concern. As the Courts are the
guardians of the rights of the States in matters that lie
outside the federal power, so the Senate is the guardian of
the interests of the States in matters which are within the
federal power. For the rest, it has been contended that the
system of Cabinet Government which has been introduced
from England to the Colonies, and which the Colonies have
imposed upon the Commonwealth, is essentially a feature of
unitary government, and is inapplicable in a federal govern-
ment ; that a Ministry cannot serve two masters — the
Senate and the House ; that if the weakness of the Execu-
tive is one of the greatest dangers of party government
with responsibility to one House, responsibility to two
Houses would break down the Executive machinery alto-
gether ; and that responsibility to one House alone means
unitary, not federal government. The answer to this
seems to be that neither the Cabinet system nor federal
government is a rigid institution. The liability of the first
to change and to mould itself to conditions is its one per-
manent feature, and perhaps its principal advantage. Both
"federal" and "unitary" governments are commonly mere
approximations to a type, and neither necessarily excludes
all the features of the other.

Of course it is obvious that with two irreconcilable
Chambers of the Legislature with co-ordinate power, the
Cabinet system would break down, and so also would any
other system that could be devised. But in the Common-
wealth, at anyrate, the Constitution of the two Houses is a
sufficient guarantee that they will not be in perpetual con-
flict. It may even be that the Senate, which as a Second

124 SENATE AND HOUSE OF REPRESENTATIVES.

Chamber is designed to contribute to the stability of
Government, will perform that oflfice in an unexpected way
by protecting the Ministry from the caprice of the House ;
and it will be no small service to the Commonwealth if
Ministers, owing a certain responsibility to both Houses,
learn that it is their duty not less than that of the Crown,
to preserve a good correspondence between the two branches
of the Legislature. The Cabinet system depends so much
upon understandings and conventions that it would be rash
to declare any development impossible.

The political effect of the clauses on the financial powers
is to strengthen rather than weaken the Senate, for it is
enabled to exercise an effective control by means less heroic
than the rejection of an Appropriation Bill. " Deadlock,"
then, in the strict sense — the bringing the machinery of
government to a standstill — is a contingency so remote as
hardly to be within the range of practical politics. But
moved by the experience of more than one of the colonies,
and especially of the Colony of Victoria, the Convention
set itself to discover some constitutional means of re-
conciling differences between the Houses in any matter
of legislation. All sorts of schemes were considered
in the Convention, in the Parliaments, and in the press.
Those who may be called the National Democrats desired
that questions of differences should be settled by the Refer-
endum pure and simple — by a simple majority of the
electors in the Commonwealth. But this was a reference
to the constituents of one Chamber only, and was naturally
objected to by the smaller States. Accordingly, there was
a party whom we may call Federal Democrats, who urged
that there should be a Referendum to the constituents of J
the respective Houses. Then there were those who were 1
totally opposed to the Referendum and favoured a resort to
the ancient constitutional remedy of dissolution, to be |
applied alternatively, simultaneously, or successively to the 1
Senate and the House. Others again thought that to make
any provision at all was the surest means of precipitating
conflicts which might be avoided in the ordinary course of

DEADLOCKS. 126

things by a little forbearance and good sense. In the end,
the Convention adopted a system which, with a trifling
alteration by the Premiers, is now contained in section 57
of the Constitution.

57. If the House of Eepresentatives passes any proposed
law, and the Senate rejects or fails to pass it, or passes it
with amendments to which the House of Representatives
will not agree, and if, after an interval of three months the
House of Representatives, in the same or the next session,
again passes the proposed law with or without any amend-
ments which have been made, suggested, or agreed to by the
Senate, and the Senate rejects or fails to pass it, or passes it
with amendments to which the House of Representatives
will not agree, the Governor-General may dissolve the
Senate and the House of Representatives simultaneously.
But such dissolution shall not take place within six months
before the date of the expiry of the House of Representa-
tives by effluxion of time.

If after such dissolution the House of Representatives
again passes the proposed law with or without any amend-
ments which have been made, suggested, or agreed to by the
Senate, and the Senate rejects or fails to pass it, or passes
it with amendments to which the House of Representatives
will not agree, the Governor-General may convene a joint
sitting of the members of the Senate and of the House of
Representatives.

The members present at the joint sitting may deliberate
and shall vote together upon the proposed law as last pro-
posed by the House of Representatives, and upon amend-
ments, if any, which have been made therein by one House
and not agreed to by the other, and any such amendments
which are affirmed by an absolute majority of the total
number of the members of the Senate and House of Repre-
sentatives shall be taken to have been carried, and if the
proposed law, with the amendments, if any, so carried is
affirmed by an absolute majority of the total number of the
members of the Senate and House of Representatives, it
shall be taken to have been duly passed by both Houses of

126 SENATE AND HOUSE OF REPRESENTATIVES.

the Parliament, and shall be presented to the Governor-
General for the Queen's assent.

The solution is curious and unique. In the first place it
will be noticed that the scheme applies only to measures
initiated in the House of Representatives, a fact significant
of the parts which the two Houses are expected to play in
government. Secondly, there is ample provision made for
delay and for reconsideration by the House,^ and there is no
obstacle to a resort to the familiar means of conference.
The application of the principle of dissolution to the Second
Chamber is not wholly a novelty, and was inspired in a
measure by the constitution of South Australia.^ But in
South Australia a dissolution of the Legislative Assembly
must precede the dissolution of both Houses ; and the
Constitution of the Commonwealth avoids the appearance
of punishing or putting pressure upon one House rather j
than the other. The mere double dissolution of the South 1
Australian system may of course result in each House
receiving a mandate from its constituents " to stick to its
guns." For such a contingency the Commonwealth Consti-
tution provides by establishing a joint sitting of the Senate
and House, in which the Bill is disposed of by the vote of
an absolute majority of the total number of members of both
Houses. The requirement of an absolute majority of each
House, in its separate sitting is to be found in most of the
Constitutions of the colonies as the condition of various
amendments; but the joint sitting is a novel feature in
Australian politics. In the United States it is resorted to
by the States Legislatures in case the Chambers have in
separate sittings chosen different persons as Senators. And
in the Constitution of the Commonwealth a joint sitting of
the Houses of the State Parliament fills casual vacancies in

^ Prof. Burgess attaches great importance to repetition of the vote as a
natural way of securing deliberation, maturity, and clear consciousness of
purpose. He suggests a mode of facilitating constitutional amendments in
the United States which probably was not without influence in the
Convention {Political Science and Constitutional Law, vol. i., p. 152).

'^ Constitutional Act Further Amendment Act, 1881, section 16.

DEADLOCKS. 127

the Senate (section 15). The French Constitution can be
amended by a National Assembly consisting of the two
Chambers in joint session, and the same body elects the
President. In Switzerland the two Chambers of the
Federal Assembly meet in joint session for three purposes ;
the decision of conflicts of jurisdiction between the federal
authorities ; the granting of pardons ; and the election of
the Federal Council, the Federal Tribunal, the Chancellor of
the Confederation, and the Commander-in-Chief of the
Federal Army.^

The real origin of the joint sitting provided for in section
57, however, is none of these; but rather the Norwegian
system according to which the two Chambers (or rather the
two parts into which the House is divided) meet as one for
the purpose of composing their differences.

The system of section 57 is applicable to proposed laws
of every kind but one — the amendmont of the Constitution.
That matter will be referred to in its proper place; but it
may be noted here as a curious fact that the provisions of
section 128 for avoidino: the obstacle of disaorreement
between the Houses are less cumbrous than those applicable
to ordinary legislation. The reason is that the alteration of
the Constitution is treated as pre-eminently a matter to be
determined by direct vote of the electors.

^Lowell, Governments and Parties in Continental Europe, vol. ii., p. 214.

CHAPTER VIII.

THE LEGISLATIVE POWER OF THE PARLIAMENT.

The definite and limited character of the Commonwealth
Government is indicated in the enumeration of the powers
of its principal organ — the Parliament. The legislative
power is not contained in any one or two sections ; it is
found in all parts of the Act, for, as has been observed, the
power of Parliament pervades the whole instrument. But
as the main object of federation was to put under a central
legislature matters which could not be dealt with effec-
tively, or at all, by the colonial legislatures, the statement
of those matters in sections 51 and 52 is the very kernel
of the measure. The other powers of Parliament, dispersed
through the Constitution, are in general adjective rather
than substantive ; they relate not to independent matters,
but to the regulation, explanation, or restriction of the
powers contained in sections 51 and 52, or to the regula-
tion of the departments of government, including, in some
matters, the constituent elements of Parliament itself.

The terms of grant are as follows :

Section 51. The Parliament shall, subject to this Con-
stitution, have (section 52 exclusive) power to make laws
for the peace, order, and good government of the Common-
wealth with respect to ; {matters enumerated).

The terms used correspond with the grant of power to
the Dominion Parliament to make laws for the " peace,
order, and good government of Canada." In Australia the

SECTION 51. 129

grant of legislative power to the colonies has been made
in the same or similar terms. In the Australian Courts
Act, 1828, and the Australian Constitutions Act, 1850, the
word " welfare " is found in the place of the word " order,"
which is in the Act of 1842 ; the use of the one word or
the other seems to be a matter of indifference; either
appears to deserve the description by the Privy Council of
the Canadian form : ** apt to authorize the utmost discre-
tion of enactment for the attainment of the objects pointed
to."i The plenitude of the powers of a colonial legislature
has been already referred to^; and the words used in the
grant indicate the intention of the Act to confer powers,
which, though limited as to subject-matter, are, as to the
subject-matters, of the same nature and extent as those
which have received the most authentic judicial construc-
tion. In R. V. Burah,^ Lord Selborne described the powers
of an Indian Legislature in terms which are applicable to
colonial legislatures generally. He said : " The Indian
Legislature has powers expressly limited by the Act of
Parliament which created it, and it can, of course, do
nothing beyond the limits which circumscribe those powers.
But when acting within those limits it is not in any sense
an agent or delegate of the Imperial Parliament, but has,
and was intended to have, plenary powers of legislation
as large and of the same nature as those of Parliament
itself. The established courts of justice, when a question
arises whether the prescribed limits have been exceeded,
must of necessity determine that question ; and the only
way in which they can properly do so is by looking to
the terms of the instrument by which affirmatively the
legislative powers were created, and by which negatively
they are restricted. If what was done is legislation within
the general scope of the affirmative words which give the
power, and if it violates no express condition or restriction

^B. V. Biel, L.E., 10 A.C. 675. Mr. Lefroy, in Legislative Power in
Canada, p, 214 note, regards the substitution of "order" for "welfare"
in the powers of the Dominion Parliament as " advised " and significant.

^See Chapter iv. ^l.E., 3 A.C. 889, 904.

130 THE LEGISLATIVE POWER OF PARLIAMENT.

by which that power is limited (in which category would,
of course, be included any Act of the Imperial Parliament
at variance with it), it is not for any court of justice to
inquire further, or to enlarge constructively those condi-
tions and restrictions." That legislative powers are of the
same nature where the subjects are limited by enumeration,
appears from the judgment of the Privy Council in Hodge
v. The Queen'^ in relation to the powers of the Provincial
Legislatures in Canada.

In America, the delegate character has been imputed not
merely to the Congress, but also to the States' Legislatures,
and the doctrine delegatus non potest delegare has greatly
hampered their action. In the dependencies of Great
Britain this doctrine has not been applied ; and the Privy
Council has recognized the validity of important delegations
in the case of Indian, Canadian, and Australian Legislatures.'-
But as a mere incident of legislative power, these legis-
latures could not create and arm with general legislative
authority a new legislative power not created or authorized
by their Act of Constitution (R. v. Burah), certainly not if it
were in substitution for the legislature and probably not if it
were to exercise by way of delegation the whole legislative
power. Even this restriction does not apply to legislatures
which, either by special grant or as representative legisla-
tures under the Colonial Laws Validity Act, 1865, section v.,
have the constituent power. The Commonwealth Parlia-
ment has not the full constituent power, and therefore comes
under the restriction indicated. But, in accordance with
the decision of the Privy Council in Hodge v. The Queen,
the delegation of power over particular subjects will be a
proper exercise of legislative discretion. It has been held
in the United States that Congress cannot transfer its legis-
lative powers to a State ; but, as we have seen, the American
doctrine is against delegation generally. In Canada, it has

iL.R.,9 A.C. 117.

2 India: R. v. Burah, L.R., 3 A.C. 889 ; Canada: The Queen v. Hodge,
9 A.C. 117 ; Australia (New South Wales) : Powell v. Apollo Candle
Company, 10 A.C. 282.

COMMONWEALTH AND STATE. 131

been said that " in any case where, in the distribution of

powers by the B.N.A. Act, certain matters are assigned to the

\ legislative authority of the Dominion Parliament, it is not

! competent for that body to delegate its functions to the

I local legislature, so as by an absolute grant of discretionary

' power to enable the local authority to deal with the matter

j itself" 1 It may be inferred that the Commonwealth Parlia-

I ment cannot make the State its delegate in regard to matters

I expressly withdrawn from or forbidden to the States, and

i the same rule may apply to matters which are declared to

\ be in the exclusive power of the Commonwealth Parlia-

j ment. But, apart from these cases, there seems no reason

why the Commonwealth Parliament should not make the

State its instrument of legislation whenever it may think

fit to do so, as it may undoubtedly use the agency of the

I State to execute its laws.

j It must not be supposed, because the Commonwealth
I Parliament is a general legislature and the State Parlia-
; ments are local legislatures, that the legislation of the
I Commonwealth Parliament must necessarily be of general
; application and relate equally to all parts of the Common-
wealth. Uniformity of bounties (§ 51), absence of dis-
! crimination in taxation (§ 51), and of preference in trade,
commerce, and revenue (§ 99), are expressly provided for.
But, otherwise, it would seem to be a matter of legislative
discretion to determine whether the interests of the Com-
monwealth require uniform or diverse, general or local
laws. So far as concerns those matters which are put under
the exclusive power of the Parliament, and those new sub-
jects over which the State Parliaments have had no power,
the principle may be accepted without any qualification,
since the Parliament possesses the sole legislative power
exerciseable within the Commonwealth, and the State
Parliament is unable to cover the local ground. In respect
to other subjects over which the State has power within its
own area, it is obvious that the interests of the whole may
require special regulation in a single State or locality; and
^ Todd, Parliamentary Government in the British Colonies, 2nd ed. , p. 570.

132 THE LEGISLATIVE POWER OF PARLIAMENT.

such regulation would be a law for the peace, order, and
good government of the Oommon wealth in respect to that
subject, though it required something to be done or forborne
only in the State or locality in question. But the position
is more difficult where the law is clearly not part of a general
system of regulation, but is local or special. For instance,
could the Commonwealth Parliament pass an Insolvency Act
for the State of Victoria or a Divorce Act for New South
Wales, or an Act establishing old-age pensions in South
Australia and not elsewhere ? It has probably been settled
for Canada that so far as the enumerated powers of the
JDominion are concerned, the Parliament of Canada may pass
a law affecting one part of the Dominion and not another,
if in its wisdom it thinks the legislation applicable to or
desirable in one and not in the other.^ But this conclusion
has been reached mainly because the Dominion powers over
these subjects are exclusive powers; and, as it is not clear
that the Provincial Legislatures may, under their power to
make laws on " matters of a merely local or private nature
in the Province," deal substantively with Dominion subjects
at all, there would be a defect of legislative power if the
Parliament of Canada could not deal with them irrespective
of area. This defect of power could not arise in Australia.
Even in these cases there have not been wanting in the
Judicial Committee indications of an opinion restricting the
Parliament of Canada to " general legislation." Thus in
the V Union St. Jacques de Montreal v. Belisle? the Board
say : " Their Lordships observe that the scheme of distribu-
tion in that section (§91 B.N. A. Act, 1867) is to mention
various categories of general subjects which may be dealt
with by legislation. There is no indication in any instance
of anything being contemplated except what may properly
be described as general legislation." In Fielding v. Thomas,^

^ See Lefroy, Legislative Power in Canada, p. 567, etc.

2L.R., 6P.C., at p. 36.

3 [1896] A.C. 600. The citation is from Mr. Lefroy 's book at pages
575 and 580 respectively, referring to the shorthand writers' report of the
proceedings.

CLASSIFICATION OF SUBJECTS. 133

Lord Herschell said: "There can be no doubt, speaking
generally, that the object and scheme of the Act is in § 91
to give the Dominion Parliament those things which were
to be dealt with as a whole for the whole Dominion." The
decision of the Judicial Committee in the Liquor Prohibi-
tion Appeal,^ as well as the observations of members of
the Board during the argument, affirms the doctrine that,
so far as Dominion legislation proceeds not from the
enumerated powers, but from the general power to make
laws for the peace, order, and good government of Canada in
relation to all matters not exclusively assigned to the legis-
lature of the Provinces, it may not deal with " any matter
which is in substance local or provincial and does not truly
affect the interests of the Dominion as a whole." It may
be expected that in the Commonwealth the Courts will be
guided by the considerations which belong to the meeting
of the general residuary power of the Parliament of Canada,
and the power over matters of " a local or private nature "
in the Legislatures of the Provinces ; that legislation by
the Commonwealth Parliament for purely local or State
purposes will not be intra vires except in the case of the
exclusive powers and in some of the new powers, but that
Commonwealth legislation may be directed to a particular
State or particular States for the purpose of effecting any
object of common interest. This is one of the matters in
which legal and political issues mingle, and accordingly
it is safe to affirm that the presumption in favour of
the validity of an Act of Parliament, which is a leading
rule of interpretation, will have even more than its usual
force, and the Courts will be slow to say that the Parlia-
ment, assuming to act for the interest of the whole
community, has dealt with a matter of no more than
local concern.

Classification of Subjects of Legislative Power. — It has
been said of the Canadian Constitution, to which in
regard to the subjects of legislative power the Common-
wealth Constitution presents a close resemblance, that it is
^A.G. of Ontario v. A.O. of Canada, 1896, A.C. 348.

134 THE LEGISLATIVE POWER OF PARLIAMENT.

difficult to refer the distribution of legislative power to any
one principle.^ Generally, the matters enumerated are
those over which the legislatures of the colonies had power
within their territories, so that there is apparently merely
the transfer of power from a local to a central government.
But there are also several matters which lay outside the
powers of a mere " local and territorial legislature,"
matters of an extra-territorial character, e.g. " the relations
of the Commonwealth with the islands of the Pacific,"
"external affairs." Further, all laws of the Commonwealth,
on whatever matter, have a limited extra-territorial opera-
tion, for by section v. of the Act it is provided that " all
laws of the Commonwealth shall be in force on all British
ships, the Queen's ships of war excepted, whose first port of
clearance and whose port of destination are in the Common-
wealth," an adaptation and restriction of section 20 of the
Federal Council of Australasia Act, 1885, by which Acts of
the Council had the force of law "on board all British
ships, other than Her Majesty's ships of war, whose last
port of clearance or port of destination" was in any
colony which had become a member of the Council.

In the second place, the powers of the Parliament may
be classified as direct or indirect. The greater number may
be exercised by Parliament on its own motion ; a few, how-
ever, can be exercised only (a) with the consent of the
State concerned — cf section 51, articles xxxiii. and xxxiv.,
acquisition of State railways, railway construction and
extension in any State ; section 124, separation of territory
from a State ; or (h) at the request or with the concurrence
of the State or States directly concerned (the Parliament
may exercise any power which can at the establishment of
the Constitution be exercised only by the Parliament of the
United Kingdom or by the Federal Council of Australasia
— section 51, art. xxxviii.); or (c) on reference by a State
or States (any matter, but so that the law shall extend only
to States by whose Parliament the matter is referred, or by
which the law is afterwards adopted — section 51, art.
^ Munroe, Constitution of Canada, p. 223.

CLASSIFICATION OF SUBJECTS. 135

xxxvii). In the Federal Council of Australasia, indirect
power was the rule, direct power the exception.

In the third place, the legislative powers of Parliament
may be grouped under certain heads of subjects. An
enumeration of subjects of legislative power necessarily
uses general terms,^ but some of the subjects set out are
related to each other, and lend themselves to grouping
according to this relation.

Extra-territorial matters, defence, trade and commerce,
communications, account for a large number of the articles
of legislation. For the rest — the subjects enumerated are
generally matters of private law falling within the depart-
ments of commercial or family law, wherein the conflict of
laws and jurisdiction is especially likely to occur, and is
always inconvenient and sometimes scandalous — it is in the
recognition of the value of uniformity of the law in these
departments that the Constitution makes its most notable
departure from the Constitution of the United States.

Fourthly, the powers of Parliament may be classified
according to the plan recognized by the Constitution itself,
under which some of the powers are expressed to be ex-
clusive (section 52).

In the United States, the Courts are constantly engaged
in determining the spheres of the Congress and the State
Legislatures, and ascertaining whether there is any incon-
sistency in their laws. In the Confederation of Canada,
it was believed that the uncertainty introduced by the
American system would be avoided by assigning to the
Dominion and the Province respectively exclusive powers
over the subjects committed to them. The plan, however,
has not fulfilled its purpose. The necessary generality of
the terms used in the distribution of powers, and the fact
that the terms themselves were not terms of legal art, have

^ Cf. Marshall, C. J., in M'Culloch v. State of Maryland, 4 Wheaton, 316 :
" A Constitution . . . requires that only its great outlines should be
marked, its important objects designated, and the minor ingredients
which compose those objects be deduced from the nature of the objects
themselves."

136 THE LEGISLATIVE POWER OF PARLIAMENT

added to rather than lessened uncertainty. On the whole,
it appears that the difficulties which attend a distribution
of powers increase where the powers of both authorities
are enumerated, and become more serious where the powers
of each are expressed to be exclusive. The Australian
Constitution, therefore, falls back on the United States
plan. In general, State Parliament and Commonwealth
Parliament have concurrent powers of legislation over the
subjects committed to the latter, and in case of incon-
sistency the Act of the Commonwealth Parliament prevails.
In both the United States Constitution and the Australian
Constitution, exclusive power on a few subjects is com-
mitted to the Federal Legislature, and in such matters of
course State legislation is not merely controlled by the
paramount power of the Commonwealth Parliament, but
is ultra vires.

The designation by section 52 of certain powers as ex-
clusive does not, however, necessarily imply that all the
enumerated powers of section 51 are concurrent ; the term
" concurrent power " is nowhere used in the Act in regard
to legislative power. Section 51 confers power on the
Commonwealth Parliament, not on the States; and so far
as the subjects therein enumerated are beyond the power
of the Colonial Legislatures, they will be beyond the power
of the States Parliaments; there was no need to prohibit
the States from dealing with them.

The question whether an Act of the Commonwealth
Parliament is valid depends upon whether it is an exercise
of any of the enumerated powers ; and this, of course,
must be shown to the satisfaction of any Court in which
the enactment is brought in question. This requires, in the
first instance, the construction of the terms in which the
power is conveyed ; and makes it necessary to set legal
bounds to descriptions which are necessarily general rather
than precise. This is not due solely to the infirmities
of the technical language of English law. The occasion
was not one for the use of rigid and inelastic terms; and
even where the terms used are technical it must be

VALIDITY OF LEGISLATION. 137

remembered that the legal definition of a subject is part
of the law thereon, and, therefore, to some extent, from the
nature of the case, within the legislative power. ^ The
nature of a Constitution "requires that only its great
outlines should be marked, its important objects designated,
and the minor ingredients which compose those objects be
deduced from the nature of the objects themselves."^ It
is, no doubt, as Sir Montague Smith pointed out, a mis-
fortune that the British North America Act, 1867, uses
such general terms ; and the Australian Constitution avoids
the most troublesome of the difficulties by omitting the
widest subjects — " criminal law," " property and civil
rights," and "all matters of a merely local and private
nature." But even with the Australian Constitution there
is wisdom in the advice of a Privy Council to those who
have to undertake the difficult task of interpretation, " to
decide each case which arises as best they can, without
entering more largely upon an interpretation of the
Statute than is necessary for the decision of the particular
question in hand." ^

The second question which arises on an enactment is as to
its true nature and character. An Act of the Parliament may
have more than one aspect ; in one view, a provision may
be an exercise of power over one of the enumerated matters;
in another it may be an exercise of power over some matter
remaining in the exclusive power of the States Parliaments.
Or again, an Act of a State Parliament may in one view
be an exercise of authority upon some matter within the
residuary power of the State Parliament; in another, it
may be an enactment upon one of the subjects of the exclu-
sive power of the Commonwealth Parliament. These
questions have been of great importance in Canada, where

^This principle appears to underlie the decisions in America upholding
the validity of the "Wilson Bill"— see in re Spickler, 43 Fed. Rep. 653, 657 ;
in re Bahrer, 140 U.S. 545.

2Per Marshall, C. J., M'Culloch v. Maryland, 4 Wheaton, 316, at p. 407.

^Citizens' Insurance Company of Canada v. Parsons (1881), 7 A.C. 96,
at p. 109.

138 THE LEGISLATIVE POWER OF PARLIAMENT.

the powers of Dominion and Province are generally exclu-
sive, and in the United States have given rise to a large
number of cases in which the Courts have had to determine
whether Acts of the States Legislatures affecting trade and
commerce are in substance enactments of commercial regu-
lation, in which case they would be invalid as infringing
federal powers which the Courts have held to be exclusive,
or are within what is called the " police power " of the
States — i.e. their general power of providing for the peace
and welfare of the State. On the one hand, it is certain
that a legislature cannot, by passing an Act which inci-
dentally affects some matter within its power, in substance
legislate upon some matter outside its control. On the
other hand, the grant of exclusive power over a subject
does not withdraw from the other legislature all power of
affecting that subject as an incident to the provision which
it makes for subjects left within its control.^ In all cases of
enactments of this kind, " the true nature and character of
the legislation in the particular instance under discussion
must always be determined to ascertain the class of subject
to which it really belongs.^ The difficult task of determin-
ing the true nature and character of Acts which have
different aspects, may involve the exceedingly delicate in-
quiry whether the Act is a bona-fide exercise of power over
a subject committed or left to the Legislature, or is a pre-
tence, under cover of which an attempt is made to invade the
province of the other Legislature. In discharging these
duties, the Court must keep separate the subject and scope
of the enactment, which are material, and the motive of the
legislator, which is immaterial and irrelevant.^ We can
understand that some of John Marshall's fame as an
expounder of the Constitution is due to the fact that he
came to the Bench after a distinguished career as states-

^ Att.-Gen. for Ontario v. A.G. for Dominion of Canada, L.R. [1894],
A.C. 189.

^Russell V. The Queen, L.R., 7 A.C. 829, at p. 840.

3 See Cooley 's Constitutional Limitations, 222 ; Lefroy 's Legislative Power
in Canada, 273.

FINANCE. 139

man and diplomatist. In the Liquor Prohibition Case,^
on appeal from Canada, Lord Watson said : " We are
always inclined to stand on the main substance of the Act
in determining under which of these provisions (of the
British North America Act, 1867) it really falls. That
must be determined secunduiYi suhjectam materiam, accord-
ing to the purpose of the Statute, as that can be collected
from its leading enactments. . . . There may be a great many
objects, one behind the other. The first object may be
to prohibit the sale of liquor, and prohibition the only object
accomplished by the Act. The second object probably is to
diminish drunkenness; the third object to improve morality
and good behaviour of the citizens; the fourth object to
diminish crime, and so on. These are all objects. What is
the object of the Act ? I should be inclined to take the
view that that which is accomplished, and that which it is
its main object to accomplish, is the object of the Statute ;
the others are mere motives to induce the legislature to
take means for the attainment of it."

Note. — The completeness of the legislative powers of the
Australian Parliaments, and the absence of a competing
power, has prevented the raising of such questions as are
here discussed upon Acts of Parliament. But a similar
question has arisen between the two Houses of Parliament
as to their respective powers over finance. The Constitution
Acts provide that Bills " for appropriating " revenue, and
" for imposing " taxation must originate in the Legislative
Assembly, and though they may be rejected they may not
be altered in the Council. The question has been whether
this limitation applies only to Bills having appropriation
or taxation for their principal object, or extends to Bills
which appropriate revenue or impose some charge as an
incident in the accomplishment of some substantive pur-
pose. Briefly, is a " Bill for appropriating " equivalent to
" a Bill which appropriates " ? The question has, of course,
never presented itself for judicial decision; and the adjust-
i[1896] A.C. 348.

140 THE LEGISLATIVE POWER OF PARLIAMENT.

ment of powers between the Houses is necessarily affected
b}'^ political more than purely legal considerations. The
matter is ably discussed in Hearn's Government of IiJngland,
second edition, Appendix. i

CHAPTER IX.

THE SUBJECTS OF THE LEGISLATIVE POWER
OF THE PARLIAMENT.

A DIVISION of the powers of the Parliament into direct
and indirect affords a convenient basis of classification.

DIRECT POWERS.

ft A. Administrative Services Transferred to the
m Commonwealth (Sec. G9).

ft Five of the subjects of legislative power enumerated in
Bee. 51 are identical with the subjects of administrative
departments of the States transferred to the Commonwealth
(sec. 69). Over " matters relating to these departments " the
power of the Parliament is, by sec. 52, exclusive.
1. Defence.

Sec. 51 contains two articles dealing immediately with
this matter, viz. :

vi. The naval and military defence of the Commonwealth
and of the several States, and the control of the forces to
execute and maintain the laws of the Commonwealth.

xxxii. The control of the railways with respect to
transport for the naval and military purposes of the
Commonwealth.

By sec. 114 a State may not, without the consent of
the Commonwealth, raise or maintain any naval or military
force ; and by sec. 119 the Commonwealth shall protect
every State against invasion, and, on the application of

L

142 SUBJECTS OF THE LEGISLATIVE POWER.

the Executive Government of the State, against domestic
violence.

There are several Imperial Statutes affecting colonial
defences and colonial forces, viz., the Army Act, 1881
(sees. 175-177); Colonial Fortifications Act, 1877; Colonial
Defences Act, 1865 ; Naval Discipline Acts, 1866 and 1884 ; J
Imperial Defence Act, 1888. 1

2. Posts, Telegraphs, and Telephones. Sec. 51 (v.).
These services are subject to the control of the Common- l

wealth, not merely for foreign and intercolonial, but also i
for internal purposes. In all the colonies, postal, telegraphic,
and telephonic communication has been a Government I
monopoly. '

3. Lighthouses, Lightships, Beacons, and Buoys. Sec.
51 (vii.).

4. Quarantine. Sec. 51 (ix.).

6. *•' Customs and Excise" are dealt with under the
general head of Finance and Trade. j

B. Administrative Services not Transferred to the
Commonwealth.
These are all matters in which a uniform system is
essential to the full utility of the services. The Common-
wealth is given power to provide for them ; but any
provision which may be made does not legally supersede,
and may exist concurrently with, the provision made by
the States.

1. Astronomical and Meteorological Observations. Sec.
51 (viii.).

2. Census and Statistics. Sec. 51 (xi.).

G. External Matters.

1. External Affairs. Sec. 51 (xxix.).

This is a power the extent of which it is difficult to
measure. The most important external matters which
have engaged Australian attention are, with a few excep-
tions, the subjects of special articles ; and the " external
affairs " of the Commonwealth, like the " foreign affairs "

EXTERNAL AFFAIRS. 143

of the Empire, are primarily matters of administration
rather than legislation. So far, however, as the conduct
of external affairs may require the co-operation of the
legislative power, the Parliament has authority to make
provision. The enactment of laws for the execution of
treaties made by the Imperial Government affecting the
Commonwealth, or made by the Commonwealth itself
under such powers as the Crown may confer upon it; of
laws on extradition or neutrality, and the like; of laws
giving effect to arrangements between the Commonwealth
and other parts of the Empire — all these would clearly fall
within article xxix. The question arises, how far a legisla-
ture which has power over " external affairs " may be
described as "local and territorial," a description which,
as has been seen, indicates a great restraint of power in
the case of Colonial Legislatures. It may be suggested that,
in virtue of this power. Acts of the Commonwealth Parlia-
ment will, like the Acts of the Imperial Government, and
unlike the Acts of the Colonial Legislatures generally, be
free of the restraint which prohibits laws intended to
operate exterritorially. Such an effect would in no way
contradict the grant of power to make laws for the
Commonwealth, for there would be no claim to enforce
the Acts in Courts outside the Commonwealth, and their
recognition abroad would depend upon their accordance
with the principles of Private International Law. And it
would not affect the rule of construction under which
Statutes are presumed not to operate exterritorially. But
that rule would be, as in the case of the Imperial Parlia-
ment, a rule of construction merely, and not a rule in
restraint of power.

2. Trade and Commerce with other countries and among
the States. Sec. 51 (i.). (See " Finance and Trade.")

3. Fisheries in Australian waters beyond territorial
limits. Sec. 51 (x.).

This is one of the powers which was possessed by the
Federal Council of Australasia; and it was exercised to
regulate the pearl, shell, and b6che-de-mer fisheries in

]

144 SUBJECTS OF THE LEGISLATIVE POWER.

Australian waters adjacent to Queensland (51 Vic, No. 1)
and Western Australia (52 Vic, No. 1). In each of the
Acts a schedule declared what were to be deemed Australian
waters under the Act. It is not without interest to note
that the United States invoked these Acts in support of
their claim to regulate the seal fisheries in the Behring
Sea, but overlooked the limitation that the Act ap})lied
only to British ships and boats attached to British ships

4. Naturalization and Aliens. Sec. 51 (xix.).

5. The people of any race other than the aboriginal rac
in any State, for whom it is deemed necessary to make
special laws. Sec 51 (xxvi.).

This refers to the various race problems which arise in
different parts of Australia, and enables the Parliament
not merely to regulate the admission of alien races, but to
establish laws concerning the Indian, Afghan, and Syrian
hawkers; the Chinese miners, laundrymen, and market
gardeners ; the Japanese settlers and Kanaka plantation
labourers of Queensland.

6. Immigration and Emigration. Sec. 61 (xxvii.).

" Undesirable immigrants " has been a subject fruitful of
discussion and legislation in the colonies at Intercolonial
Conferences, and more than one attempt has been made to
secure uniformity of legislation upon the subject.

7. The influx of criminals. Sec 51 (xxviii.).

This was one of the heads of legislative authority under
the Federal Council Act of 1885 ; and although it would no
doubt be included under "external affairs" or "immigra-
tion," it was retained in the Constitution as calling
attention to a particular evil of which the colonies have
long complained — the escape of criminals from the penal
settlements of foreign Powers in the Pacific

8. The relations of the Commonwealth with the islands
of the Pacific. Sec. 51 (xxx.).

This also was a head of legislative authority in the
Federal Council Act, which was the outcome of the
" Australasian Convention " of 1888, called to consider the
** Annexation of neighbouring islands and the Federation of

MERCANTILE LA W. 145

Australasia." The position of the Pacific Islands has been
the most important matter of foreign or external policy
with which Australasia has concerned herself; and like
" external affairs " in general the matter has been one to be
dealt with rather by diplomacy than legislation. At the
Convention of 1883, Australian Ministers promulgated her
" Monroe Doctrine " by declaring that " The further acquisi-
tion of Dominion in the Pacific south of the equator, by any
foreign power, would be highly detrimental to the safety
and well-being of the British possessions in Australasia and
injurious to the interests of the Empire." Australian
statesmen have often, and very recently, expressed the
opinion that Australasian interests in the Pacific are over
readily sacrificed by Imperial Ministers, and their hope no
doubt is that the Governor-General may receive the powers
of a High Commissioner in the Pacific, and may be in-
structed to exercise those powers on the advice of his
Australian Ministry. How far this may be practicable will
depend largely upon the attitude of New Zealand, whose
recent action has gone some way to forestall the Common-
wealth. Article xxx., therefore, stands for a policy which is
certainly ambitious and may be aggressive. Even under
present arrangements there is scope for the exercise of legis-
lative authority, e.g. in the regulation of the trade with the
islands, particularly the prohibition or regulation of the labour
traffic and the punishment of offenders against the natives.

D. Mercantile Law.

1. Banking, other than State banking, also State bank-
ing extending beyond the limits of the State concerned, the
incorporation of banks and the issue of paper money.
Sec. 51 (xiii.).

Compare British North America Act, 1867, sec. 91 (15),

and the interpretation by the Judicial Committee in

Tennant v. Union Bank of Canada.^ "The legislative

authority conferred by these words is not confined to the

mere constitution of corporate bodies with the privilege of

i[1894] A.C. 31, 46.
K

146 SUBJECTS OF THE LEGISLATIVE POWER.

carrying on the business of bankers. It extends to the
issue of paper currency, which necessarily means the
creation of a species of personal property carrying with it
rights and privileges which the law of the province does
not and can not attach to it. It also comprehends " bank-
ing," an expression which is wide enough to embrace every
transaction coming within the legitimate business of a
banker."

2. Insurance, other than State insurance, and also State
insurance extending beyond the limits of the State con-
cerned. Sec. 51 (xiv.).

3. Weights and Measures. Sec. 51 (xv.).

4. Bills of Exchange and Promissory Notes. Sec. 51 (xvi.).

5. Bankruptcy and Insolvency. Sec. 51 (xvii.).
Commenting upon a similar power of the Dominion of

Canada, the Judicial Committee, in the Alt. Gen, for
Ontario v. the Att. Gen. for Canada,^ say: "It is not
necessary in their Lordships' opinion, nor would it be
expedient to attempt to define what is covered by the
words, * bankruptcy' and 'insolvency' in sec. 91 of the
British North America Act. But it will be seen that it is a
feature common to all the systems of bankruptcy and
insolvency to which reference has been made, that the
enactments are designed to secure that in the case of an
insolvent person his assets shall be rateably distributed
amongst his creditors whether he is willing that they
should be so distributed or not. Although provision may
be made for a voluntary assignment as an alternative, it is
only as an alternative. In reply to a question put by their
Lordships, the learned counsel for the respondent were
unable to point to any scheme of bankruptcy or insolvency
legislation which did not involve some power of compulsion
by process of law to secure to the creditors the distribution
amongst them of the insolvent debtor's estate. In their
Lordships* opinion these considerations must be borne in
mind when interpreting the words ' bankruptcy ' and
' insolvency ' in the British North America Act." See also
1 [1894] A.C. 189.

MERCANTILE LA W. 147

Cushing v. Dupuy} and L' Union St Jacques de Montreal
V. Belisle}

6. Copyrights, patents of inventions and designs, and
trade marks. Sec. 51 (xviii.).

Copyrights. — This is the subject on which has arisen the
important legal and political controversy, hereafter referred
to, as to the nature and exercise of the respective powers of
the Imperial Parliament and the Parliament of Canada. It
is impossible here to enter into the intricate history of
Colonial copyright, or to consider the very difficult questions
which remain unsettled.^ The most important provisions
of the Imperial law of copyright are those contained in
the International Copyright Act, 1886, and the Order in
Council of 1887, whereby {a) the author of a book first
published in any part of the Queen's dominions has copy-
right in the book throughout the Queen's dominions for
42 years from first publication, or for the lifetime of the
author and seven years afterwards, whichever time is the
longer ; and

(6) The author of a book first published in any foreign
country belonging to the Copyright Union has copyright
throughout the Queen's dominions for the same term, or any
less term allowed by the law of the foreign country.

Her Majesty may, however, denounce the Berne Conven-
tion in the case of any British Colony, and thereafter the
provisions as to international copyright shall cease to apply.
The power of Colonial Legislatures over Imperial copyright
is apparently limited to supplementing the Imperial
law — to " Enactments for registration and for the im-
position of penalties for the more efi'ectual prevention of
piracy."^ But by sec. 8 of the Act " Nothing in the Copy-
right Acts or this Act shall prevent the passing in a British
possession of any Act or Ordinance respecting the copy-
right within the limits of such possession of works first
produced in that possession."

^ (1880) 5 A.C. 409, 415. 2 (i874) L.R., 6 P.C. 31.

^See Scrutton mi Copyright, cap. viii., and the Bluehook (1895, C. 7783).
^Opinion of Law Officers, 1889 (1895, C. 7783, p 49).

148 SUBJECTS OF THE LEGISLATIVE POWER.

Inasmuch as none of the powers in article xviii. are
exclusive powers in the Commonwealth, there is prima
facie nothing to prevent the State Parliament from
making laws as to the grant of patents, and the protection
of copyrights and trade marks. It may be assumed that
when the Commonwealth Parliament does legislate upon
these topics, it will be by a uniform law applying equally
throughout the Commonwealth ; and the question may be
raised whether after such law it will be competent for the
State, in virtue of its own laws, to grant patents or to
protect copyrights and trade marks as it has done in the
past — i.e. to protect within its own territory alone. It
would probably be held in such a case that the Common-
wealth law was a law not only for the whole Common-
wealth, but for each and every part of the Commonwealth,
and therefore superseded the State laws.

It may also be pointed out that a question may arise as
to the operation of State laws on these subjects after
the imposition of uniform duties of customs. Such
laws, to be effective, must prohibit the introduction of
articles manufactured or works produced elsewhere, other-
wise the protection would be illusory. But would not
such laws impair the freedom of trade, commerce, and inter-
course among the States, in contravention of sec. 92 ?

7. Foreign Corporations, and trading or financial corpora-
tions formed within the limits of the Commonwealth. Sec
51 (xx.).

This subject of foreign corporations is of especial import
ance in Australia, because many of the most importani
trading and financial companies and some mining com-
panies are companies formed in England, while of th<
companies formed in the colonies large numbers carr}!
on operations in several colonies.

The result is that there is much legislation in the various
colonies as to " foreign corporations." Article xx., of course
authorizes the Parliament to make a Companies Law for th(
whole of the Commonwealth ; and there is no branch of th(
law in which a uniform law is more desirable.

FAMILY LA W. 149

8. Currency, Coinage, and Legal Tender. Sec. 51 (xii.).
This must be read in connection with Sec. 115 : "A State
shall not coin money, nor make anything but gold and
silver coin a legal tender in payment of debts."

The words "and legal tender*' are inserted in order to
avoid the doubt raised in the United States as to whether
Congress could, under a power to " coin money," make
paper legal tender.^

E. Family Law.

1. Marriage. Sec 51 (xxi.).

2. Divorce and Matrimonial causes ; and in relation
thereto, parental rights and the custody and guardianship
of infants. Sec. 51 (xxii.).

It is presumed that these powers include a power to
regulate the property rights of husband and wife, upon
marriage, during marriage, and on the dissolution of mar-
riage. There is a good deal of diversity in the divorce
laws of the colonies ; and it is quite possible, so long as the
colonies remain separate law districts, that parties may be
married persons in the view of one colony and single persons
according to the law of another. The matter is complicated
by the fact that the relation is principally governed by
domicil, and in countries like Australia the conditions of life
make it peculiarly difficult to ascertain the domicil. It
is to observed that " parental rights and the custody and
guardianship of infants " is not a substantive power, but is
only '' in relation " or incident to " divorce and matrimonial
causes."

F. Administration of Justice.
The intimate social and economic relations of the Aus-
tralian Colonies have intensified the inconvenience which
belongs to their separate existence as foreign countries for
purposes connected with the administration of the law.
Though all had the common law of England, the law of one

^See Cooley, Constitutional Lmo. p. 91 ; and the Legal Tender Cases, 12
Wall, 457.

150 SUBJECTS OF THE LEGISLATIVE POWER.

had to be proved in another as foreign law. No process
of one colony would run in another ; and the arrangements
which independent states may make to supplement the
limitations of territorial power were deemed to be beyond
the power of mere " local and territorial legislatures." The
Imperial Acts dealing with the matters — 6 and 7 Vict., c. 34,
and 16 and 17 Vict., c. 118 — were modelled upon extra-
dition, and were confined to treason and felony. The
mischief and scandal of criminals finding a refuge by
crossing an imaginary line, early engaged the attention of
Australians, and abortive attempts in intercolonial councils,
and elsewhere, were made to deal with the matter. The |
Imperial Government was urged in 1867 to extend the Acts
to misdemeanours, but protracted negotiations only ended
in 1870 in a refusal by the Colonial Secretary (Earl Gran-
ville) to propose legislation until the colonies should have
come to a common understanding, and in a suggestion that
a solution of the problems " would be facilitated if it were
possible for the Australian Colonies to enact in concert a
common criminal code, based on the Imperial law, a
measure which Her Majesty's Government would see with
much pleasure both from its intrinsic convenience and its
tendency to consolidate the great Australian group." It was
not until the Fugitive Offenders Act of 1881 that the
special conditions of groups of colonies were recognized and
provision made for meeting the want that had so long been
urgent in Australia.

The laws of the colonies themselves did something,
though not by uniform or concerted action, to recognize
the judgments, the probates, the inquisitions in lunacy,
and some other proceedings in other colonies of Australia,
while it was very general to provide for an extension of
jurisdiction by permitting service out of the jurisdiction.
The Federal Council of Australasia Act, 1885, included
among the few subjects on which direct power was given
to the Council : {d) " The service of civil process of the
courts of any colony within Her Majesty's possessions in
Australasia out of the jurisdiction of the colony in which

ADMINISTRATION OF JUSTICE. 151

it is issued" ; {e) "The enforcement of judgments of courts
of law of any colony beyond the limits of the colony " ; (/)
" The enforcement of criminal process beyond the limits of
the colony in which it is issued, and the extradition of
offenders (including deserters of wives and children, and
deserters from the Imperial or Colonial naval or military
forces) " ; {g) " The custody of offenders on board ships
belonging to Her Majesty's Colonial Governments beyond
territorial limits." In its first session the Federal Council
passed three Acts, which were in pursuance of these
powers: No, 2, an Act to facilitate the proof throughout
the Federation of Acts of the Federal Council, and of Acts
of the Parliaments of the Australasian Colonies, and of
Judicial and Official Documents, and of the Signatures of
certain Public Officers ; No. 8, an Act to authorize the
service of civil process out of the jurisdiction of the colony
in which it is issued; No. 4, an Act to make provision
for the enforcement within the Federation of Judgments of
the Supreme Courts of the Colonies of the Federation.
These Acts, it must be remembered, apply only to those
colonies which became members of the Federal Council.
There is also a Federal Act — the Australasian Testamentary
Process Act, 1897 — applying to four of the colonies, which,
in a very limited way, makes them auxiliary to each other.
A few Imperial Acts do something to bring the courts of
the Australian Colonies into touch with each other, as well
as with other parts of the British Dominions, e.g, the
Evidence by Commission Act, 1859 ; the British Law
Ascertainment Act, 1859; and section 118 of the Bank-
ruptcy Act of 1883. Finally, some of the colonies have
gone far on the road to require their courts to take
judicial notice of the laws and public acts of other
Australasian Colonies. In 1898 Victoria (Act No. 1554),
Queensland (62 Vict., No. 15), and Western Australia
passed practically identical Acts for this purpose ; while,
by 55 Vict., No. 5, sec. 11, New South Wales requires
its courts to take notice of the Statute law and the
unwritten law of other countries, authenticated in the

162 SUBJECTS OF THE LEGISLATIVE POWER.

manner prescribed by the laws of such countries respec-
tively. ^

Turning now to the Constitution, we find that the legis-
lative power extends over:

1. The service and execution throughout the Common-
wealth of the civil and criminal process and the judgments
of the Courts of the States. Sec. 51 (xxiv.).

2. The recognition throughout the Commonwealth of the
laws, the public acts and records, and the judicial proceed-
ings of the States. Sec. 51 (xxv.).

These provisions must be read with sec. 118, whereby
"Full faith and credit shall be given throughout the
Commonwealth to the laws, the public acts and records,
and the judicial proceedings of every State."

Compare the United States Constitution, art. iv., sec. 1 :
" Full faith and credit shall be given in each State to the
public acts, records, and judicial proceedings of every
other State. And the Congress may, by general laws,
prescribe the manner in which such acts, records, and
proceedings shall be proved, and the effect thereof" This
clause in the Constitution of the United States has often
received judicial construction. While it "implies that the
public acts of every State shall be given the same effect
by the Courts of another State that they have by law or
usage at home" {Chicago and Alton Railroad v. Wiggins
Ferry Coy.),^ the provision and the Act of Congress upon
it "establish a rule of evidence rather than of jurisdiction"
( Wisconsin v. Pelican Insurance Goy.).^ The laws of a
State have not under it any exterritorial operation ; they
must be proved in other States as matters of fact; the
Courts there will not take judicial notice of them.* Judge
Cooley says : ^ " By this provision a rule of comity becomes
a rule of constitutional obligation. It also becomes a

^ See thereon Homeward Bound O.M. Coy. v. Macpherson (1896), 17
N.S.W. Eep. 281.
2(1896) 119 U.S. 615. 3(1887) 127 U.S. 265.

* Chicago, etc., v. Wiggins, sup. ; Hanky v. Donohue (1885), 116 U.S. 1, 4.

* Principles of Constitutional Law, p. 203.

ADMINISTRATION OF JUSTICE. 153

uniform rule, and the common authority is empowered to
pass laws whereby the courts may govern their action in
receiving or rejecting the evidence presented to them of
the public acts, records, and judicial proceedings of other
States." The provision has operated, and its limitations
have been defined, principally in relation to the judgments
of other States.^ It is held that judgments recovered in
a State of the Union " differ from judgments recovered in
a foreign country in no other respect than in not being
re-examinable on their merits, nor impeachable for fraud
in obtaining them, if rendered by a Court having juris-
diction of the cause and of the parties.^ In the words
of Story {Conflict of Laws, sec. 609), cited and approved
by the Supreme Court in Thompson v. Whitman^: "The
Constitution did not mean to confer any new powers upon
the States, but simply to regulate the effect of their
acknowledged jurisdiction over persons and things within
their territory. It did not make the judgments of other
States domestic judgments to all intents and purposes, but
only gave a general validity, faith, and credit to them as
evidence. No execution can issue upon such judgments
without a new suit in the tribunals of other States. And
they enjoy not the right of priority or lien which they
have in the State where they are pronounced, but that
only which the lex fori gives to them by its own laws in
their character of foreign judgments." And it has been
held that the rule that one country will not enforce the
penal laws of another holds as between States of the Union,
and extends to judgments recovered under such penal
laws.*

The most general conclusion to which the cases point is
that the provision does not carry us much further than the
doctrines of the common law now well established but in
their infancy in 1789, embodied in what is called Private

^ See Dicey, Conflict of Laws, cap. xvi. {American Notes), p. 434.
^Hanley v. Donahue, 116 U.S. 1, 4. =' 18 Wallace, 457, 462, 463.

M1887) Wisconsin v. Pelican Insurance Coy., 127 U.S. 265; (1892)
Huntington v. Attrill, 146 U.S. 657.

154 SUBJECTS OF THE LEGISLATIVE POWER.

International Law. In a sovereign State, however, these
doctrines may be varied or excluded by the action of the
Legislature ; the provision in the U.S. Constitution pre-
vents such action, and therein lies the aptness of Judge
Cooley's observation, cited above, that by the provision, " a
rule of comity becomes a rule of constitutional obligation."
A further consequence of inserting this provision in the
Constitution is that the observance is brought under the
protection of the federal judicial power.

These observations will apply to the Commonwealth. It
should be noticed, however, that in the Commonwealth full
faith and credit is to be given to the " laws " of a State as
well as to its " public acts," and, conformably with the
American doctrine which treats the clause as evidentiary, it
may be suggested that this enables the States Courts to take
judicial notice of the laws of other States. English and
Colonial Courts have properly enough treated the ascer-
tainment of foreign law as a matter of fact, wherein in truth
it does not differ from domestic law.^ Less appropriately
it has been treated as a question for the jury, and has to
be proved by evidence in accordance with well settled
rules. If the State Courts are required to take judicial
notice of the laws of other States, such proof will no longer
be required. "The true conception of what is judicially
known is that of something which is not or rather need not
be unless the tribunal wishes it, the subject of either
evidence or argument — something which is already in the
Court's possession, or, at any rate, is so accessible that there
is no occasion unless the Court asks for it to use 'any
means to make the Court aware ' of it ; something it may
deal with quite unhampered by any rules of law. In
making this investigation, the judge is emancipated from
all the. rules of evidence laid down for the investigation oi
facts in general." ^ It has been pointed out that the State
laws have already made considerable provision for th(

^ See Thayer, Evidence at the Common Law, p. 258 ; Salmond, Laii
Quarterly Review, 1900, p. 386.
2 Thayer, p. 280.

ADMINISTRATION OF JUSTICE. 155

authentication of the laws of other States ; and these will
no doubt guide the discretion of the judges. Section 51
(xxv.) enables the Parliament to provide for the authentica-
tion of the laws, public acts, etc., following the terms of
section 118.

There is some doubt whether article xxv. goes beyond
this proof Can the Parliament provide, e.g., that probate
taken out in Victoria shall give to the executor the powers
of an executor throughout the Commonwealth ? Or that
the committee of a lunatic or the guardian of an infant
appointed in one State shall have the powers of a committee
or a guardian throughout the Commonwealth, exercising in
each State the powers which he would have had under an
appointment there ? This would undoubtedly be " recog-
nition " of the public acts and judicial proceedings in ques-
tion, and the provision would cause no difficulty in law and
would be very convenient in practice.^ It is submitted
that the collocation of " laws " creates no difficulty, and that
it would be satisfied by a construction which enables the
Commonwealth Parliament to determine as amongst the
States the difficult questions of jurisdiction and choice of
law, which belong to the " Conflict of Laws " or the " Extra-
Territorial Recognition of Rights." Many indeed of the
subjects which cause the greatest difficulty in this the most
modern chapter of the law are already provided for as sub-
stantive heads of legislative power — bankruptcy, bills of
exchange, corporations, marriage, and divorce. The incon-
veniences which attend the existence of separate law
districts among a people whose relations must be intimate
may be met in different ways. On the one hand, separation
may be made to give way to unity, and this is no doubt
contemplated in the subjects referred to. This may be
easily and painlessly effected, because the colonies have
already substantially the same law. On the other hand,
the separate law districts may be maintained, but a
uniform system of inter-state relation of law may be

Hvf. Dicey, Conflict of Laws, pp. 10, 20, and 30, on " Recognition " and
•' Enforcement " in relation to foreign laws and rights.

156 SUBJECTS OF THE LEGISLATIVE POWER.

established. In general, the doctrines of Private Inter-
national Law permit the forum to claim more than it is
prepared to concede to other countries, and in such a case
the fact that all the members of a group of countries apply
the same doctrines does not facilitate a reconciliation of
their claims. In this department, the Commonwealth
Parliament may be able under articles xxiv. and xxv. to
apply itself with advantage.

In regard to article xxiv., " civil and criminal" must pro-
bably be taken to embrace the whole range of judicial
proceedings; and "judgments" will certainly include
" decrees " and " sentences," and probably also *' orders."
There is no reason to suppose that the power is confined to
final judgments, and does not extend to interlocutory
proceedings.

G. Miscellaneous.

There are two heads of power which may be described as
afterthoughts, and are to some extent to be accounted for
by a desire to disarm the opposition of those who contended
that federation " would do nothing for the people." They
reflect the popular political interests of the time, quite
apart from the project of federal union. " Invalid and old-
age pensions," sec. 51 (xxiii.), and " conciliation and arbi-
tration for the prevention and settlement of industrial
disputes," sec. 51 (xxxv.), were part of the political pro-
gramme of some party, if not of all parties, in each of the
States ; and all were regarding with interest the experi-
ments already made in New Zealand. The latter subject
was made one of federal legislative power when such
industrial disputes " extend beyond the limits of any one
State." " Invalid and old-age pensions " can no doubt be
dealt with more effectively by the Commonwealth than by
the State Parliaments. If a State is not to be burdened
with pensioners who have resorted to it merely for the
pension, it must require a considerable period of residence
within its limits as one of the qualifying conditions. But
with the nomadic population of the Australian Colonies

INDIRECT POWERS. 157

such a requirement necessarily excludes from the benefit of
the pension large numbers of persons who have " tried
their luck" in various parts of the Continent. The
Commonwealth Parliament may be satisfied with resi-
dence for a specified period in the Commonwealth.

INDIKECT POWERS.

1. The acquisition, with the consent of a State, of any
railways of the State on terms arranged between the
Commonwealth and the State. Sec. 51 (xxxiii.).

The opinion was strongly held that the railways, which
had been so fruitful a source of intercolonial bitterness,
should, for political and commercial reasons alike, be vested
in the Commonwealth, and subject to federal control. This
policy was not adopted, and the provisions in the chapter
on Finance and Trade and articles xxxiii. and xxxiv. take
the place of such an arrangement. As the article stands,
there is no power in the Commonwealth to acquire State
railways save by agreement with a State.

By virtue of sec. 98, the power of the Parliament to
make laws with respect to trade and commerce extends to
railways the property of any State ; and it may be inferred
that they will not have less power over the railways
which they acquire from a State.

2. Railway construction and extension in any State with
the consent of that State. Sec. 51 (xxxiv.).

In the United States it has been contended, and is
apparently now established, that the commerce power of
Congress includes as an incident the authorization and
execution of all manner of works for facilitating inter-
State and foreign commerce, including the construction of
roads, railroads, bridges, and canals.^ This is very much
more than the general power of appropriating money for
the general welfare where the objects of expenditure remain
under State laws ; it is a federal power in which the federal

^See Story on the Constitution, c. 26 ; Stockton v. Baltimore <fc N. Y.R.R.
Coy. (1887), 32 Fed. Reports 9 ; Luxton v. North River Bridge Coy. (1894),
153 U.S. 525.

168 SUBJECTS OF THE LEGISLATIVE POWER.

law prevails notwithstanding the obstacles of State law.
The express power contained in art. xxxiv. may perhaps
be taken as indicating that the commerce power in the
Commonwealth Parliament does not extend to the con-
struction of railways in a State without the consent of that
State. But this is not the only view that may be taken of
it. Article xxxiv. is clearly not limited to railways which
are incidental to inter-State commerce. It might be held
that the Parliament has as a matter of commerce (sec. 51
(1) and sec. 98) among the States power to make railways
which are obviously in furtherance of that commerce ; and
that art. xxxiv. merely authorizes the exercise of legislative
power with the consent of the State in regard to the con-
struction of railways which have no direct relation to inter-
State commerce.

3. Matters referred to the Parliament of the Common-
wealth by the Parliament or Parliaments of any State or
States, but so that the law shall extend only to States by
whose Parliament the matter is referred, or which after-
wards adopt the law. Sec. 51 (xxxvii.).

This section may be compared with the provision in sec.
15 of the Federal Council Act, 1885, under which legisla-
tive power was given to the Federal Council over a number
of enumerated matters whenever the legislatures of two or
more colonies should refer such matters. It differs from
that provision in that reference may be made by a single
legislature so that the Parliament may legislate for that
colony. It offers a convenient method of extending the
range of legislative subjects without resorting to an amend-
ment of the Constitution. Any enactment by the Common-
wealth in pursuance of such a reference will be a federal
law in the sense that it cannot be altered by the State
Parliament, and that State laws inconsistent therewith will
be invalid.

4. The exercise within the Commonwealth, at the request
or with the concurrence of the Parliaments of all the
States directly concerned, of any power which can at the
establishment of this Constitution be exercised only by the

AUXILIARY AND INCIDENTAL POWERS. 159

Parliament of the United Kingdom or by the Federal
Council of Australasia. See. 51 (xxxviii.).

This is a very remarkable and far-reaching power. It
appears to enable the Commonwealth Parliament, with the
co-operation of the States, to assume the full measure of
Imperial power within the Commonwealth; and to repeal
without limitation of any kind Imperial Acts of Parliament
in operation there. Of course, there is always the power
in the Crown to disallow such Acts, and in the Imperial
Parliament to withdraw the power. But as the Imperial
Parliament is in the highest degree unlikely to recall a con-
stitutional power, the latter safeguard has no great practical
value. The fact remains that there is now within the
Empire a "subordinate legislature" with a very extensive
power of repealing Imperial legislation. It can hardly be
I suggested that the article is confined to the cases in which
i both the Federal Council and the Imperial Parliament
could have acted. The expression ** at the establishment of
the Constitution" in this connection is rather curious. The
Federal Council Act was repealed, and the Council itself
ceased to exist when the Commonwealth Act received the
Royal Assent on July 9th, 1900 (sec. vii. of the Act). The
Commonwealth was not established, nor did the Constitu-
tion take effect until January 1st, 1901. What is the date
of the "establishment of the Constitution " ?

It is to be noted that art. xxxviii. stands outside the

I distribution of Commonwealth powers into legislative,

i executive, and judicial, for the supremacy of the Imperial

I Parliament, which is the measure of powers to be referred,

does not admit of such a separation.

j AUXILIARY AND INCIDENTAL POWERS.

1. The acquisition of property on just terms from any
State or person for any purpose in respect to which the
Parliament has power to make laws. Section 51 (xxxi.).

This is a recognition of the power of " eminent domain " ;
it means that the Parliament may, by act of legislation,
provide for the acquisition of property against the will of

160 SUBJECTS OF THE LEGISLATIVE POWER.

the owner, whether a State or a private person. The
conditions are: (1) that the Commonwealth must acquire
"on just terras," i.e. not at a price arbitrarily determined
by itself; and (2) that the purpose of acquisition must be
some purpose in respect to which the Parliament has
power to make laws. This does not, of course, set any
limit to the power to acquire property; it applies only
to compulsory acquisition. The provision may be com-
pared with that in the Fifth Amendment to the United
States Constitution — "nor shall private property be taken
for public use without just compensation," a prohibition
reproduced in many of the States Constitutions.

2. Matters in respect of which this Constitution makes
provision until the Parliament otherwise provides. Sec. 51
(xxxvi.).

The Constitution establishes many things " Until the
Parliament otherwise provides." This article is equivalent
to a declaration that in such a case the Parliament shall
have power to provide from time to time for the matters in
question — that its power over the matter is not exhausted
by a single provision.

3. Matters incidental to the execution of any power
vested by this Constitution in the Parliament or in either
House thereof, or in the Government of the Commonwealth,
or in the Federal Judicature, or in any department or
officer of the Commonwealth. Sec. 61 (xxxix.).

Of the corresponding provision in the Constitution of the
United States, Judge Cooley says: "The import of the
clause is that Congress shall have all the incidental and
instrumental powers ... to carry into execution all the
express powers. It neither enlarges any power specifically
given, nor is it a grant of any new power to Congress, but
it is merely a declaration for the removal of all uncertainty
that the means for carrying into execution those otherwise
granted are included in the grant." ^

And it must not be inferred from this power to legislate
that in the absence of legislation the various organs of

* Principles of Constitutional LaiCy p. 105.

AUXILIARY AND INCIDENTAL POWERS. 161

government are without the instrumental and protective
power which belongs by the common law to their like.
Thus, though the lax et consuetudo Parliamenti does not
apply to a colonial legislature so as to enable its constituent
parts to exercise punitive powers, the chambers of such a
legislature have all the powers necessary for their own
protection, and for securing their proceedings against
interruption or disturbance.^ Again, the Courts of the
Commonwealth may regulate the admission of persons to
practise before them, and may exercise according to their
degree the power of punishing for contempt. The Executive
Government may take the measures allowed to the
Executive authorities at common law to protect every
branch of the federal authority in the performance of its
duties, and by the Constitution itself, the executive power
of the Commonwealth extends to the execution and main-
tenance of the Constitution. The nature of this power
was illustrated in the United States in the case In re
Neagle.^ In anticipation of an attack being made by one
Terry upon Judge Field, United States Circuit Judge in
California, Neagle was ordered to attend him as deputy
marshal for his protection ; and when the anticipated
attack was made, Neagle, in defence of the judge, killed
Terry. For this an information was sworn in the State
Court and a warrant issued against the judge and the
deputy marshal. The latter was arrested, and sued out
his writ of habeas corpus. The Circuit Court held that
the prisoner was in custody for "an act done in pursuance
of a law of the United States, and in custody in
violation of the Constitution and laws of the United
States," and accordingly ordered his discharge. Tt was
objected in the Supreme Court that there was no Statute
authorizing such protection as that which Neagle was
instructed to give Judge Field, but it was held, never-
tlieless, that it was within the power and duty of the
3xecutive to protect a judge of any of the Courts of the
United States when there was just reason to believe that he

' See Barton v. Taylor, L.R., 11 A.C. 197. ^1889) 135 U.S. 1.

L

162 SUBJECTS OF THE LEGISLATIVE POWER.

would be in personal danger while executing the duties oi"
his office. Answering the argument that the preservation
of peace and good order in society is not within the powers
confided to the Government of the United States, but
belongs exclusively to the States, Mr. Justice Miller said :
" We hold it to be an incontrovertible principle that the
Government of the United States may by physical force
exercised through its official agents execute on every foot of
American soil the powers and functions that belong to it.
That necessarily involves the power to command obedience
to its laws, and hence the power to keep order to that
extent." ^ A fortiori is there such a power in the Common-
wealth, where the principal organ — the legislature — is
expressly empowered to make laws " for the peace, order,
and good government of the Commonwealth," in respect to
the matters committed to it.

It is to be noted that powers over many of the subjects
committed to the Parliament of the Commonwealth are
exercised by Congress in the United States as " implied
powers," e.g. lighthouses and quarantine under the commerce
power.

THE EXCLUSIVE POWER OF THE PAELIAMENT.

Section 52. "The Parliament shall, subject to this
Constitution, have exclusive power to make laws for the
peace, order, and good government of the Commonwealth
with respect to :

i. "The seat of Government of the Commonwealth, and
all places acquired by the Commonwealth for public
purposes."

This has been already referred to in chapter iii. on " The
Nature and Authority of the Federal Commonwealth,"
under the head of " The territory of the Commonwealth " ;
and it has been pointed out that according to the American
decisions the exclusive power of legislation over a place
carries with it exclusive jurisdiction. Persons residing
U35U.S. 60.

EXCLUSIVE POWER OF PARLIAMENT. 163

within it are not residents in any State ; and are not
entitled to vote as citizens of a State at any election. ^ Such
territory and its government are without the most charac-
teristic feature of a federation — the division of power
between central and local governments ; and the territory
stands outside the " federal " arrangements of the Constitu-
tion, which adjusts the relations of the States. "Territory
so placed becomes as extraneous to the State as if it were
held by a foreign government." This is true in the
sense that the territory in question ceases to be part of its
State. But in any other sense, such territory is not to be
regarded as foreign even in the limited way in which that
terra can be applied to the relation of the States to each
other. The Commonwealth Government exercises in regard
to it the full powers of a national government throughout
the Commonwealth ; the government of the territory is not
a distinct political entity, a separate persona, it is nothing
■else than the Commonwealth Government discharging its
national duties.^ It is obvious that the omnipotence of the
t Parliament in relation to Commonwealth territory, and
especially the seat of government, may be made the basis
of an exercise of power which may be of national importance.
In the United States the residents in the Federal Dis-
trict of Columbia and the territories are not electors for the
Presidency, the Senate, or the House of Representatives.
And in like manner the arrangements of the Constitution
provide, in the first instance only, for the exercise of
political power by electors of the States. Section 122, how-
ever, provides that the Parliament may allow the represen-
tation of territory surrendered by any State and accepted
by the Commonwealth, in either House of the Parliament,
bo the extent and on the terms which it thinks fit.
ii. " Matters relating to any department of the public
irvice, the control of which is by this Constitution

^Hare, American Constitutional Law, p. 1142.

^Cf. Hare, American Constitutional Law, 1143, and passage there cited
from the judgment of Marshall, C.J., in Cohens v. Virginia, 6 Wheaton

164 SUBJECTS OF THE LEGISLATIVE POWER.

transferred to the Executive Government of the Common-
wealth."

" By this Constitution " must be taken to include " under
the powers of this Constitution." Strictly speaking, the
departments of customs and excise alone are transferred by
the Constitution ; the others become transferred on the
proclamation of the Governor-General.

iii. " Other matters declared by this Constitution to be
within the exclusive power of the Parliament."

The question whether the power over commerce among
the States is an exclusive power is discussed elsewhere.

CHAPTER X.

THE RELATION OF THE LEGISLATIVE AUTHORI-
TIES (THE IMPERIAL PARLIAMENT, THE
COMMONWEALTH PARLIAMENT, THE STATE
PARLIAMENT) AND THE VALIDITY OF LAWS.

Acts of non-sovereign legislatures may be unconstitutional

on several grounds. If the Legislature is one of special

powers, its Act may have dealt with a matter not granted.

If the Legislature is one of general powers, its Act may

relate to a matter expressly or impliedly excepted from

the grant. In either case, the grant of power may, in

I respect to any matter, be subject to restrictions upon its

; exercise — the power is not to be exercised in certain direc-

: tions, or certain modes or forms are prescribed. And the

I supreme Legislature may from time to time invade the

■ sphere of the subordinate and exert its paramount authority,

; in which case it overrides existing laws of the subordinate

, and offers an obstacle to the making of new laws by the

subordinate, which are inconsistent with it.

1. So far as any Act deals with matters not granted to
the Legislature, or with matters withheld from it, or exer-
cises power in a forbidden way, it is ultro^ vires. But the
i taint does not go beyond the restriction ; an Act may per-
i fectly well be ultra vires as to part only. The test adopted
both in the United States and Canada is the separate nature
of the enactments or their application. " Whether the other
I parts of the Statute must also be adjudged void because of

i

166 LEGISLATIVE AUTHORITIES AND LAWS.

the association, must depend upon the consideration of the
object of the law, and in what manner and to what extent
the unconstitutional portion affects the remainder. . . .
Where a part of the Statute is unconstitutional, that fact
does not authorize the Courts to declare the remainder void
also, unless all the provisions are connected in subject-matter,
depending on each other, operating together for the same
purpose, or otherwise so connected together in meaning,
that it cannot be presumed the legislature would have
passed the one without the other. . . . The point is . . .
whether they are essentially and inseparably connected in
substance." ^ The separation is not necessarily affected by
enactment in different sections or in different parts of the !
Act. On the other hand, connection is not conclusively
established by inclusion in the same words ; the words of j
the Act may apply and be unmistakably intended to apply j
equally to cases within and without the power of the legis-
lature. " A legislative act may be clearly valid as to some
classes of cases, and clearly void as to others." ^ A State
law, purporting to affect all commerce, might be ultra vires
so far as it impaired the freedom of trade, commerce, and
intercourse among the States, yet valid so far as its opera-
tion upon the internal commerce of the State was concerned.
In MacLeod v. A.G. for New South Wales,^ the Privy
Council decided that a colonial legislature has no power
over crimes committed beyond its territory ; accordingly,
an Act purporting to deal with offences wheresoever com-
mitted, and plainly intended to include crimes committed
abroad, would be ultra vires so far as those crimes are
concerned. But a person indicted under the Statute for an
offence committed in New South Wales would not be
entitled to an acquittal on the ground that the Act
extended to cases beyond the power of the legislature.*^-

I

^ Cooley, Constitutional Limitations, 5th ed., pp. 211, 212. For Canadian i;
cases, see Lefroy, pp. 289-299. ■'

2CooIey, p. 215. ^j-iggi] ^.C. 455.

'*In Macleod v. A.G. for N.S. W., the Privy Council held as a matter of
construction that the expression, *' wheresoever committed," must mean

IMPERIAL LEGISLATION. 167

" The unconstitutional law must operate as far as it can,
and it will not be held invalid on the objection of a party
whose interests are not affected by it in a manner which the
Constitution forbids." ^

2. Legislation hy Paramount Authority. — The three
legislatures — the State Parliament, the Commonwealth
Parliament, and the Imperial Parliament — in matters
which are within the power of all form a hierarchy.

(1) Control by Imperial Legislation — The Colonial Laws
Validity Act, 1865.

The Imperial Parliament remains paramount, and is
capable now, as at all times previously, of legislating for this
as for all other parts of the dominions of the Crown.
Whether an Imperial Act extends to the Commonwealth is
a matter of inter pre ta,tion, upon the principles of which
there can hardly be any difference of opinion. The view
that obtained some currency in Canada, that the " exclusive"
powers of legislation conferred by the British North America
Act, 1867, meant exclusive of the Imperial Parliament, is
now so far discredited that it is unnecessary to discuss the
grounds upon which it is based, especially as "exclusive"
powers form so small a part in the Commonwealth Parlia-
ment. The subjects upon which there will be some differ-
ence of opinion are whether the circumstances which
determine the application of an Imperial Act as a matter
of " necessary intendment " are the same in the Common-
wealth as in the colonies ; and, further, whether there is any
power in the Parliament of the Commonwealth to repeal or
alter laws of the Imperial Parliament applying in the
Commonwealth at the date of the establishment of the
Commonwealth. The first of these questions relates to
future legislation of the Imperial Parliament, the second to

" wheresoever in N.S. W.," as from the more extended meaning " it would
follow as a necessary result that the Statute was ultra vires.'''' Semble, this
must be qualified, and can mean no more than that the Statute would, so
far as the more extended operation was concerned, be ultra vires. But see
U.S. V. Reese, 92 U.S. 214, and the Trade Mark Cases, 100 U.S. 82.
1 Cooley, p. 215.

168 LEGISLATIVE AUTHORITIES AND LAWS.

past legislation. Though the questions are distinct, it is
obvious that they are governed by considerations which are
in general the same or similar.

It is most important in this connection to observe that
many of the matters within the power of the Parliament
are exactly those matters in -which, as being deemed of
Imperial or international concern, the legislative power of
the Imperial Parliament has been freely exercised, and (it
may be presumed) will be exercised in the future. Thus the
question pf the relation of Commonwealth Acts to Acts of
the Imperial Parliament is one of practical importance.

Whether or not the Commonwealth is a "Colony," and
the Commonwealth Parliament a " Colonial Legislature,'
within the terms* of the Colonial Laws Validity Act, 1865,
future Acts of the Imperial Parliament will of course extenc
to the Commonwealth whenever they are made applicable
by express words or necessary intendment. But what ii
necessary intendment? The test is a vague one, to be
applied in the light of many circumstances, one of which is
the status of the place, and the measure of self-governmeni
which it enjoys. It may be urged that an exercise of legis-
lative power by the Imperial Parliament in these matters ig
less lightly to be presumed in the case of the Commonwealth
than in the case of the colonies in their separate state
that the express grant of power over them indicates
general intention that these matters henceforth are to be
deemed primarily within the scope of self-government, anc
therefore ordinarily outside the exercise of Imperial power,
In this, of course, there is no suggestion of any . abandon-
ment of legal power. On the other hand, it may be arguec

^Cf. Lefroy, Legislative Potoer in Canada, p. 82 n., citing Gwynne, J., it
Maritime Bank, v. The Queen, 17 S.CR., at pp. 681-2: '* I must say that
in my opinion, we make a very great mistake if we treat the Dominion
Canada constituted as it is as a mere colony. The aspirations of th<
founders of the scheme of confederation will, I fear, prove to be a mer
delusion if the Constitution given to the Dominion has not elevated it to
condition much more exalted than and different from the condition of
colony which is a term that, in my opinion, never should be used ai
designative of the Dominion of Canada."

IMPERIAL LEGISLATION. 169

t that the matters in question are in several cases matters in
I which the separate colonies had power by virtue of express
grant ; and that the general nature of the Constitution is to
set up new relations within Australia, and not to create new
relations between Australia and the Imperial Parliament.
The subject is one upon which it is hardly possible to give
a decided answer. The weight which a Court is disposed
to give to the fact that a power of legislation has been
conferred on the Commonwealth Parliament may well differ
in the case of particular matters, but it would seem to
be of some relevance in all. More than this the vagueness
of the subject makes it impossible to say.

The second question is, How far does the express grant
! of povver by the Constitution to the Commonwealth Parlia-
ment over the various specified subjects affect the past
legislation of the Imperial Parliament thereon ? Merchant
Shipping Acts, Copyright Acts, Bankruptcy Acts — is the
power to repeal or alter these Acts extending to the Com-
monwealth included in the power to make laws for the
peace, order, and good government of the Commonwealth in
respect to " navigation and shipping," "copyrights," " bank-
ruptcy and insolvency." A similar question has been raised
in Canada, and Sir John Thompson has strenuously con-
tended that in respect to all the subjects committed to the
Parliament of Canada that Parliament must be considered
to have the plenary power of the Imperial Parliament,
including the power to repeal Imperial laws thereon
operating in Canada at the establishment of the Do-
minion.^ The Provincial Courts of Canada, which have
considered the question in relation to the specific powers
conferred on the Provincial Legislatures by the British
North America Act, 1867, have taken divergent views
of it. The Canadian Government has pressed the view of
"plenary power." The Colonial Office, on the advice of
successive law officers of the Crown, has uniformly deter-
mined against the view of Sir John Thompson, and has on
that ground disallowed Canadian Acts inconsistent with
^See Lefroy, Legislative Poiver in Canada, pp. 208-231.

170 LEGISLATIVE AUTHORITIES AND LAWS.

Imperial Acts passed prior to the Act of 1867. In sup-
port of this action, it is urged that the Colonial Laws
Validity Act, 1865, is a general law dealing with the enact-
ments of all subordinate legislatures throughout the British
Dominions, except in the Channel Islands, the Isle of Man,
and British India; that it is intended to apply to new
political communities equally with those existing at the
time of the Act, and that grants of constitutions are subject
to the provisions of the Act. Therefore, the Dominion
Parliament and the Provincial Legislatures are " Colonial
Legislatures," and their enactments " colonial laws " within
the Act ; and by section 2 " any colonial law which is or
shall be in any respect repugnant to the provisions of any
Act of Parliament extending to the colony to which such
law may relate, or repugnant to any Order or Regulation
made under authority of such Act of Parliament, or having
in the colony the force or effect of such Act, shall be read
subject to such Act, Order, or Regulation, and shall to the
extent of such repugnancy, but not otherwise, be and remain
absolutely void and inoperative."

On the- other hand, it may be urged that the specific
grant of powers to legislate upon a given subject is a
power to make laws upon that subject in the legal con-
dition in which it is at the time of the grant. Power is
given over the subject in the colony, and that includes
the power to deal with existing laws thereon, whatever
their origin. This view is probably strengthened by the
fact that so many of the subjects of the specific grant
are subjects on which there is existing Imperial legislation ;
and that the new Constitution of the British North
America Act, 1867 (as of the Commonwealth Act, 1900),
is devised as a liberal extension of the power of self-
government.

It is argued with less force that in the case of any
colony the repugnancy which avoids an Act is repugnancy
to some Act passed after the creation of the Legislature of
the colony; this would imply that every colonial legisla-
ture was empowered to repeal or vary all Imperial laws

IMPERIAL LEGISLATION. 171

in operation in the colony at the time of the grant of a
constitution. The suggestion has been made that the
establishment of a new political community within the
Empire is analogous to the acquisition of a colony by
settlement or occupation; and that just as the legislature
of such a colony has power over Imperial Acts in opera-
tion in that colony at the time of the settlement, so the
Dominion Parliament or the Commonwealth Parliament
has power over the Imperial laws in the Dominion or
the Commonwealth at the time of its establishment. But
the analogy fails for more than one reason. In the first
place, it is at best a case of analogy and not of identical
instances. The political re-organization of a portion of
the dominions of the Crown, which has existing laws and
institutions, is something widely different from the acquisi-
tion of new territories in which ex hypothesi there is
neither law nor government. In the second place, such
legislatures have not power over all Imperial Acts in the
colony in virtue of the doctrine of the common law that a
new settlement colony takes so much of English law as is
suitable to its condition. Acts which are not merely part
of English law, but are at the time of their enactment made
applicable throughout the British Dominions cannot be
repealed by a colonial legislature. And it is to this class
that the legislation now in question belongs.

There are no circumstances to distinguish the Common-
wealth of Australia from the Dominion of Canada in this
respect ; and the arguments which have been advanced in
one case may be adduced in the other.

Note. — A phrase in sec. vi. of the Draft Bill suggested to the Law
Officers of the Crown the advisability of inserting in sec. v. an
express provision that "the laws of the Commonwealth shall be
Colonial Laws within the meaning of the Colonial Laws Validity-
Act, 1865." Section vi. having defined "the Commonwealth," pro-
ceeded : " ' Colony ' shall mean any Colony or Province." This, it
was surmised, implied that the Commonwealth was not a " colony " ;
that consequently " the Parliament " was not a " colonial legislature,"
and its Acts not " colonial laws." It is obvious that such an effect
might cut in either of two ways. If the Colonial Laws Validity

172 LEGISLATIVE AUTHORITIES AND LAWS.

Act really extends the powers of dependent legislatures, a legislature
which is without its scope is deprived of its benefits. But the
exception of the Commonwealth Parliament from the scope of the
Act would also except it from the restrictions imposed by the Act,
and would strengthen in the case of the Commonwealth the argu-
ments which have been held in Canada as to the power over existing
Imperial legislation. Ultimately, the objections of the Law Officers
were met by the omission of the definition of " Colony " in section vi.
It is submitted that the objection was not sound. The purpose of the
definition was clear — South Australia is designated a "Province" and
not a "Colony," and it was advisable to extend to her the term which
described the other colonies. The definition, in common with other
definitions in an Act of Parliament other than an Interpretation Act,
applies only to the term as used in the Act itself. In the Act, " colony "
(save ag» provided by section viii.) excludes " Commonwealth " ; but for
other purposes, including the application of other Imperial Statutes,
the definition of section vi. would have been inoperative.

(2) State and Commonwealth Laws.

The relation between State legislation and Common-
wealth legislation is laid down in sec. 109, whereby " when
a law of a State is inconsistent with a law of the Common-
wealth, the latter shall prevail, and the former shall, to
the extent of the inconsistency, be invalid."

1'his provision operates where the State law conflicts
with some exercise of power by the Commonwealth Parlia-
ment, not where it is inconsistent with the power itself.
It assumes that each legislature is acting within its proper
range of power, where the State law would be good and
operative but for the exercise of paramount power by the
Commonwealth Parliament, the case which has been de-
scribed in America as that in which the State law fails,
"not because it is unconstitutional, but because it is
superseded by the paramount authority of the national
legislature." ^ It applies whether the State law has been
passed after the Commonwealth law or the Common-
wealth law has been passed after the State law.

The application of the provision raises two difiiculties.
The first is to determine when inconsistency arises; the
second is as to the nature and extent of invalidity.

^ Hare, American Gonstitvtioncd Law, p. 98.

STATE AND COMMONWEALTH LAWS. 173

First, inconsistency may arise otherwise than from the
conflict of the very terms of the Acts. " The two laws may
not be in such absolute opposition to each other as to
render the one incapable of execution without violating
the injunctions of the other; and yet the will of the one
legislature may be in direct collision with that of the
other." ^ When the Commonwealth Parliament has made
a law on some matter committed to it, it may well be
intended that the law should be exhaustive of regulation
upon that matter. In a case where the whole field of
legislation is thus covered State laws making further
regulations u})on the subject will be inconsistent with the
exclusive purpose of the Commonwealth Parliament, and
invalid, though there be no inherent contradiction in the
expressed terms of the laws. Indeed, it is clear that not
a few of the subjects over which the Parliament has
power, though they are not exclusive in the strict sense,
are such that the legislation of the Parliament, to use
the language of Story, " suspends the legislative power of
the States over the subject matter." ^ No universal rule
as to " inconsistency " of this kind can be laid down ; we
must look in each case to " the nature of the power, the
effect of the actual exercise, and the extent of the subject
matter." ^

Inconsistency with Paramount Laws. — The provision
of section 109 that a State law inconsistent with a law
of the Commonwealth shall, to the extent of the incon-
sistency, be invalid, may be compared with the language
of the Colonial Laws Validity Act, 1865, sec. 2, whereby
a colonial law repugnant to an Imperial Act shall, to the
extent of the repugnancy, but not otherwise, be and remain
absolutely void and inoperative. An analogous doctrine
is contained in the provision of the United States Con-
stitution that the Constitution and the laws of the United
States made in pursuance thereof shall be the supreme
law of the land (article vi.); and, though there is no

^Per Washington, J., Houston v. Moore, 5 Wheaton, 1, 21, 22.
^ Story, Constitution of the United States, sec. 441. ^ lb.

174 LEOISLATIVE AUTHOIilTIES AND LAWS.

provision in the British North America Act upon the
subject, it is now settled that, in case of conflict between
Dominion and Provincial laws in matters within the com-
petence of both, the Dominion law prevails.

The express provisions that the State law, to the extent
of the inconsistency, shall be invalid, suggests on the face
of it that it will be wholly null and void, so that it will
not become operative on the repeal of the Commonwealth
Act. And in the United States there are many decisions
that " an unconstitutional Act is not a law ; it is, in legal
contemplation, as though it had never been passed." But,
as has been already pointed out, the distinction has been
taken between unconstitutional Acts, which are void, and
Acts conflicting merely with an exercise of paramount
power. Both in the case of the United States and of
Canada it has been held that a State or Provincial Act
is only barred of its operation by the Act of Congress or
the Dominion, and on the repeal of the latter it becomes
operative. Thus in Butler v. Goreley ^ an Insolvency Act
of the State of Massachusetts inconsistent with Acts of
Congress of 1853 and 1867 repealed by Congress in 1878,
need not be re-enacted, for " the repeal of the Bankruptcy
Act of the United States removed an obstacle to the
operation of the Insolvent Laws of the State." In Att. Gen.
for Ontario v. Att. Gen. for the Dominion of Canada and
the Distillers' and Brewers' Association of Ontario,^ the
Judicial Committee of the Privy Council, having to con-
sider a conflict between the Ontario Liquor License Law of
1890 and the Dominion Temperance Act of 1886, said :
*' In so far as they do (conflict), provincial must yield to
Dominion legislation, and must remain in abeyance, unless
and until the Act of 1886 is repealed by the Parliament
which passed it." By section 109 it is provided not merely
that the Commonwealth law shall prevail, but that the
State Law shall, to the extent of the inconsistency, be
invalid. This seems to indicate more than temporary

1 (1892) 146 U.S. 303. See also In re Rahrer (1890), 140 U.S. 345.
2 [1896] A.C. 348.

STATE AND COMMONWEALTH LAWS. 175

abeyance or failure of operation ; and it is conceived that
the State law will be, or become, according to the circum-
stances, a nullity, and will not be operative, except by
re-enactment when the bar is removed.

The result appears to be the same where a Colonial
Act is inconsistent with an Imperial Act. The Colonial
Laws Validity Act, section 2, provides that a repugnant
colonial law shall be, and remain, absolutely void and
inoperative. And the matter is strengthened by the Inter-
pretation Act, 1889, sec. 38 (ii.), whereby

" When this Act, or any Act passed after the commence-
ment of this Act, repeals any other enactment, then, unless
the contrary intention shall appear, the repeal shall not

" {a) Revive anything not in force or existing at the time
at which the repeal takes effect."

Formal Validity of Laws. — The Constitution in sections
53 and 60 has prescribed the modes of legislation or the
forms of the law in certain classes of case. We have to
consider how far any departure from the mode, or any
defect in the form prescribed, affects the validity of enact-
ments.

The case may well be different from that of the Imperial
Parliament, where rules of procedure, whatever their im-
portance as conventions of the Constitution, are secured
by Parliamentary sanctions merely ; a measure purporting
to be an Act of the Imperial Parliament, if authenticated
in the usual and proper way, could hardly be impugned
by any external evidence. ^ The Colonial Constitution
Acts have commonly dealt with the procedure to be
observed in the case of Money Bills and Bills for the
amendment of the Constitution ; and doubts have been
entertained as to the validity of Acts amending the Con-
stitution which are not shown to have been passed by the
statutory majorities or to have been reserved for the Royal
Assent. In 1864 the Law Officers of the Crown (Sir
Rouudell Palmer and Sir Robert Collier) expressed the
opinion that "when the power of legislation is given, not
^See May, Parliamentary Practice, 10th ed., pp. 488, etc.

176 LEGISLATIVE AUTHORITIES AND LAWS.

to a simple majority, but to certain specified majorities in
one or both branches of the Legislature, it is evident that
such majorities are a eine qua non to its exercise, and
consequently that the judges are not at liberty to treat
any law on that subject as valid if it appears either on
the face of the law itself, or by other proper evidence
that it was not, in fact, passed by the required majorities."
The customary forms of legislation, however, afford no
indication of the use of any special procedure ; and,
in the opinion referred to, the Law Officers did not
think it absolutely necessary "that it should appear
on the face of the law itself that it was passed by the
requisite majorities (if the fact can be otherwise proved)
in order to authorize the judges to act upon such legisla-
tion as valid and effectual " ; and they inclined to think,
though they treated the point as admitting of some doubt,
that "the judges ought to presume, until the contrary is
proved, that every Act which has passed the Legislature,
and which is authenticated as an Act of the Legislature,
was passed by such a majority as would be necessary
according to law to give it effect." Accordingly the Colonial
Laws Validity Act, 1865, section 6, provides that " the
certificate of the clerk, or other proper officer of a legisla-
tive body in any colony, to the effect that the document
to which it is attached is a true copy of any colonial law
assented to by the Governor of such colony .... shall
be prima facie evidence that .... such law has been
duly and properly passed and assented to." The question
remains whether in all cases this presumption can be
rebutted, and how in any case it may be rebutted. The
proper evidence for rebutting the presumption would, of
course, be the Journals of the Legislature ; but as each
House controls its own records, it seems to be within the
power of the Legislature to refuse to make that evidence
available. In Bickford, Smith and Coy. v. Musgrove'^ the
question was raised as to the observance of the proper
forms in the case of a Money Bill, and the issue fell
1 17 V.L.R. 296.

STATE AND COMMONWEALTH LAWS. 177

because the Speaker of the Legislative Assembly of
Victoria refused to allow the production of the Journals,
and the Act was treated as valid. But, apart from the
question of evidence, can the presumption of validity be
rebutted ? So far as the common provisions concerning
Money Bills are concerned, the Judicial Committee of the
Privy Council in Powell v. Apollo Candle Coy} said : " It
has been argued that the proviso that all Bills for appro-
priating any part of the public revenue, or for imposing
any new rate, tax, or impost, shall originate in the Legisla-
tive Assembly in the colony is at least a direction on the
part of the Imperial Parliament that all levying of taxes
in the colony shall be by Bill, as in this country in the
Lower House. It may be that the Legislature assumed
that, with respect to customs duties, such a course would
undoubtedly be pursued, as is in accordance with the usages
and traditions of this country; but it appears to their
Lordships impossible to hold that the words of an Act
which do no more than prescribe a mode of procedure with
respect to certain Bills shall have the effect of limiting the
operation of those Bills." ^

" Laws " and " Proposed Laivs." — This is the assumption
which underlies the use of the terms " law " and " proposed
law " in the Commonwealth Constitution, sects. 53-59.
They indicate the difference between the product and the
machinery ; " law " is sanctioned by ill usage as an equiva-
lent for " act " or " statute," " proposed law " is an innova-
tion, and a somewhat clumsy one, indicating "bill."
Where the Constitution prescribes the procedure upon
" proposed laws," the provisions are generally directory
merely ; they are matters of Parliamentary practice attended
with Parliamentary and political sanctions, and may be

UO A.C., pp. 282, 290.

2 Mr. Burgess, speaking of the United States Constitution, art. i., sec. 7,
whereby * ' Bills for raising revenue shall originate in the House of Eepre-
sentatives," regards the matter as a legal question determinable by the
Courts, and not a political question determinable by the Legislature alone
{Political Science and Constitutional Lata, vol. i., p. 196).

M

178 LEGISLATIVE AUTHORITIES AND LAWS.

waived by the concurrence of the enacting authorities.
Where on the other hand the Constitution speaks of "laws,"
it makes the observance or non-observance of the provisions
a legal and not simply a political question.^ What is the
legal sanction ? In the absence of express direction, nullity.
By section 55 laws imposing taxation, except laws imposing
duties of customs or excise, shall deal with one subject of
taxation only ; if they deal with more than " one subject of
taxation," the whole will be void. " Laws imposing duties
of customs shall deal with duties of customs only, and laws
imposing duties of excise shall deal with duties of excise
only " ; if an Act transgress either rule, it is invalid. But
in providing that " laws imposing taxation shall deal only
with the imposition of taxation," section 55 expressly pro-
vides that " any provision therein dealing with any other
matter shall be of no effect."

There are two cases, however, in which the term " pro-
posed law " introduces provisions which go to the validity
of the enactments to which they relate — in section 60 and
section 128. Section 128 deals with the alteration of the
Constitution, and will be referred to under that head. By
section 60 it is provided that " a proposed law reserved for
the Queen's pleasure shall not have any force unless and
until, within two years from the day on which it was pre-
sented to the Governor-General for the Queen's Assent, the
Governor-General makes known by speech or message to
each of the Houses of Parliament or by Proclamation that it
has received the Queen's Assent."

^The ambiguity of •* law " in the English language has often been com-
mented upon. The inconvenience of using the same term for jus and lex is
to some extent mitigated by the pre-eminence of the Imperial Parliament,
and the fact that Statute is our type of law. But the use of "a law"
to describe an enactment of a subordinate legislature leads us at once to
confusion and paradox. For a "law" made by the Parliament of the
Commonwealth or a State may be invalid, may not be " law " in the ab-
stract. The authors of the Commonwealth Constitution are not the
originators of the anachronism, a void or invalid "law." The same thing
may be found in the Colonial Laws Validity Act, 1865, which declares
that "Colonial laws" shall, in certain cases, "be and remain absolutely
void and inoperative."

STATE AND COMMONWEALTH LA WS. 179

Note. — 111 the United States the Courts have gone very far towards
holding that the ordinary distinction between mandatory and direc-
tory provisions does not apply to Constitutions, and that as these high
and solemn instruments do not condescend to procedure, all their
enactments must be treated as mandatory. (See Cooley's Consti-
tutional Limitations^ p. 93.) I think, however, that the decision of
the Judicial Committee in Powell v. the Apollo Candle Coy?- sufficiently
indicates that in this, as in other matters touching the exercise of
legislative power, the English and American Courts are travelling on
different roads.

1 10 A.C., p. 282.

L

CHAPTER XL

FINANCE AND TRADE.

Although this is the title of chapter iv. of the Constitu-
tion, important provisions on the subject are to be found
in several other parts of the instrument. In chapter i.,
part v., sec. 51, under "Powers of the Parliament," the first
matters mentioned in respect to which the Parliament
has power to make laws are :

" 1. Trade and commerce with other countries and among
the States " : a power which by section 98 is declared to
extend to making laws with respect to "navigation and
shipping, and to railways the property of any State."

"2. Taxation, but so as not to discriminate between
States or parts of States."

" 3. Bounties on the production or export of goods, but
so that such bounties shall be uniform throughout the
Commonwealth."

"4. Borrowing money on the public credit of the
Commonwealth."

The departments of customs and excise are among the
State departments of public service transferred to the
Executive Government of the Commonwealth, and are
therefore dealt with in chapter ii. — " The Executive
Government." They are also brought within the ex-
clusive power of the Parliament, which, by section 52,
covers "matters relating to any department of the public
service, the control of which is by this Constitution trans-

TAXATION. 181

ferred to the Executive Government of the Common-
wealth."

Finally, certain sections of chapter v. — the States — also
relate to finance and trade, viz., sections 112 and 113.

A. FINANCE.

Taxation. — Sec. 51. "The Parliament shall, subject to
this Constitution, have power to make laws for the peace,
order, and good government of the Commonwealth with
respect to

"ii. Taxation, but so as not to discriminate between
States or parts of States."

The power which lies at the root of all government is
thus conferred in the most unqualified terms. It is a
substantive power, and not a mere incident to the accom-
plishment of the other purposes of the Commonwealth
Government. In the second place, the terms employed
extend far beyond those used in the Constitution of the
United States, where Congress has power merely "to lay
taxes, duties, imposts, and excises to pay the debts and
provide for the common defence and general welfare of the
United States"; or in the British North America Act,
1867, where the government of particular powers — the
Provincial Legislature — has power to make laws with
respect to " Direct Taxation within the Province in order
to the raising of a revenue for Provincial purposes," A
power to make laws for the peace, order, and good govern-
ment of the Commonwealth with respect to " Taxation "
is prima facie more than a power to raise money by
taxation, and to prescribe the matter, manner, measure,
and time thereof; it is capable of embracing the whole
subject of taxation, by whatever authority, throughout
the Commonwealth. While the States would retain the
power of regulating and imposing taxation as heretofore,
their laws thereon would be subject to the paramount laws
of the Commonwealth Parliament. To such an extensive
construction of the power over taxation, it may, no doubt,
be objected that it is a Federal Commonwealth which has

182 FINANCE AND TRADE,

been established; that "the power to tax is a power to
destroy " ; that under it the Commonwealth Parliament
would have power to deprive the States of the means of
carrying on their government by forbidding every con-
ceivable mode of taxation; and that it is a cardinal
doctrine of construction applied both to the Constitution
of the United States and the Constitution of Canada
that the extent of particular powers conveyed must
be measured by the nature of the union. A notable
instance of restricted construction put upon extensive
words is to be found in the Slaughter-House Cases,^ in-
terpreting the Fourteenth Amendment of the Constitution
of the United States, whereby no State shall make or
enforce any law which shall abridge the privileges and
immunities of citizens of the United States. The Supreme
Court treated as irresistible the argument that a con-
struction must be false which would involve so great a
departure from the structure and spirit of American
institutions as to fetter and control the States Governments
by subjecting them to the control of Congress in the
exercise of powers of the most ordinary and fundamental
character, radically changing, in fact, the whole theory of
the relation of State and Federal Governments to each other,
and of both those Governments to the people. In the
Slaughter-House Cases, however, the question was as to the
effect of an Amendment which, had the extended meaning
contended for been given to it, would have changed the
relations of nearly a century by introducing Congressional
and judicial control over functions which the States
Legislatures had exercised independently ; and the argu-
ments of the Court would have had little or no application
if the provision had been an original provision in the
Constitution, so that the question would have been — What
was the nature of the federal union established ? The
organization of the Dominion of Canada shows that the
control of the federal executive over all legislative acts of
the province is not inconsistent with a federal union.
1 (1873) 16 Wallace, 36.

TAXATION. 183

Some controlling power over taxation would be entirely
within the scope and spirit of the Union. At present the
State laws of taxation may be and in some cases are based
upon different principles, so that property may be liable
to a double taxation which is generally recognized as
inequitable. Income tax and death duties may be collected
upon a different basis— one State may levy the tax upon a
basis of domicil, another upon the situation of property.
It would be well within the spirit of federalism that such
a clash of principles should be prevented by a central
authority. Further, the decision of the Privy Council in
Bank of Toronto v. Lamhe ^ shows that the existence of a
controlling power in the central authority leaves a larger
sphere of action to the local authority than could in the
absence of that control be safely allowed.

The argument of Marshall, C.J., in M'Culloch v. Mary-
land,'^ that the " power to tax is a power to destroy," is to
some extent met by the observation of the Privy Council in
the Bank of Toronto v. Lamhe,^ that the liability to abuse is
not a sufficient reason for deciding t'hat a power does not
exist. The argument from inconvenience is one which, in
any case, must be cautiously applied, and in this case it
tells both ways, for in the absence of control the State can,
by imposing taxation on objects taxed by the Common-
wealth, embarrass the calculations of a Commonwealth
Treasurer and impede the collection of federal revenue.

" Taxation " is adopted as being the most comprehensive
word for describing all the various means of raising a
revenue. " In the broadest sense an exercise of the taxing
power occurs whenever a compulsory contribution of wealth
is taken from a person, private or corporate, under the
authority of the public powers " (Public Finance, by Carl
Plehn, p. 77). The practice of enumerating more particu-
larly the modes of revenue (as in the United States Con-
stitution— "taxes, duties, imposts, and excises") is one
which a very slight acquaintance with English history
condemns.

1 12 A.C. 575. 24 wheaton, 316. ^ 12 A.C. 675.

184 FINANCE AND TRADE.

The substantive power of taxation thus conferred is, like
every other power of sovereignty, liable to abuse ; but the
power is legally quite independent of the conditions which
attach under the Constitution to the appropriation and
expenditure of the proceeds of the tax.

The power is subject to the following conditions :

1. " Taxation ; but so as not to discriminate between
States or parts of States."

This is a "federal" condition for the protection of the
States against the Parliament. As originally drawn, it
followed the terms of the Constitution of the United States
as to duties, imposts, and excises, and provided that taxation
should be " uniform throughout the Commonwealth." But
this was more than the federal spirit required ; it prevented
not merely discrimination among the States, but discrimina-
tion in the case of individuals ; and the Convention, warned
by the observations of the Supreme Court of the United
States in Pollock v. The Farmers' Trust (the Income Tax
Case),^ adopted terms of geographical limitation.

" Discriminate " is ordinarily used in two senses — *' to
distinguish " merely, and to " distinguish adversely." It
would be reasonable to suppose that the latter meaning
attached here, as it undoubtedly does in sec. 117, both as
restricting in a less degree the power which has been con-
ferred on Parliament, and as satisfying the federal purpose
of the provision. But against this view there are some
forcible reasons. In the first place, *' discriminate," in its
dyslogistic sense, is followed by "against" and not by
" between." In the second place, where discrimination in
favour of or against a person or interest has been forbidden,
the legislature has used some qualifying term to indicate
the character of the prohibition ; and the Courts have been
careful to point out that not all discrimination, but only
discrimination of a particular kind was prohibited, e.g. the
" unjust discrimination " by the Inter- State Commerce Act
(United States). In applying the analogous provisions of
the Railways Clause Consolidation Act and the Railway
1 157 U.S., p. 429. See the Opinion of Field, J.

TAXATION. 185

and Canal Traffic Act, the English Courts have distinguished
between the prohibition of " undue preference " and " undue
prejudice " on the one hand, which casts upon them the
duty of ascertaining whether the preference or prejudice is
" undue," and the obligation to impose equal rates, on the
other hand, which is an " absolute statutable obligation,"
and when it applies requires the Company to charge a rate
" equal to all persons without reference to the particular
advantage to be derived by any individuals or class of
individuals.'^ Similarly, in sec. 102, the Constitution itself,
dealing with railways, recognizes the distinction between
" preference " or " discrimination," and " preference or dis-
crimination which is undue or unreasonable, or unjust to
any State," by conferring power on Parliament to forbid
undue or unreasonable discriminations only. Finally, the
disposition of the Courts to adopt a construction favouring
the more extensive power of Parliament as against one
which would fetter its discretion (as by preventing it from
distributing taxation according to the principle of special
benefit accruing to particular areas 2) would be checked by
the consideration that such a construction would cast upon
the Courts the invidious duty of pronouncing upon the
justice of the action of Parliament in that matter which
has always been pre-eminently a matter of Parliamentary
concern, and would require them to undertake the solution
of difficult economic problems.

2. The Commonwealth {i.e. the Parliament) may not
impose any tax on property of any kind belonging to a
State (sec. 114).

This prohibition is accompanied by a provision that the
State shall not impose any tax on property of any kind
belonging to the Commonwealth; and section 114 may be

^ See Inter-State Commerce Commission v. Baltimore and Ohio Railway
Co., 145 U.S., at p. 277 ; Parker v. G. W.R. (1844), 7 Man. and G., 253 ;
G. W.R. V. Sutton (1869), L.R., 4 H.L. 226; L. dt N. W.R. v. Evershead
(1878), 3 A.C. 1029.

2 But taxation according to benefits received has been held not to conflict
with the requirement of uniformity in States Constitutions. See Cooley,
Constitutional Limitations, 6th ed., p. 613, etc.

186 FINANCE AND TRADE.

compared generally with sec. 125 of the British North
America Act, 1867, under which no lands or property
belonging to Canada, or any province, shall be liable to
taxation. In the United States it has been established by
judicial decision that neither Congress nor a State Legis-
lature may tax the ** Governmental agencies " of the other.
" That the power to tax involves the power to destroy ;
that the power may defeat and render useless the power to
create ; that there is a plain repugnance in conferring upon
one Government a power to control the constitutional
measures of another, which other, in respect to those very
measures, is declared to be supreme over that which exerts
the control, are propositions not to be denied." ^ In the Bank
of Toronto v. Lamhe,^ the Privy Council expressly refused
to apply this doctrine to provincial taxation of corporations
constituted under Dominion laws, on the ground that
though the doctrine of Marshall, C.J., was applicable where
"each State may make laws virtually uncontrolled by the
federal power, and subject only to the limits placed by law
on the range of subjects within its jurisdiction," it was
inapplicable where the controlling power possessed by the
Dominion Government over provincial legislation effectually
protected Dominion interests from destruction by the Pro-
vinces. Obviously that case decides nothing as to the
taxation of Provincial instrumentalities by the Dominion.

In the Commonwealth the power of the State may
depend upon the view taken of the Commonwealth power
to make laws with respect to "taxation." If the true
meaning of that power is that the Commonwealth Parlia-
ment may control the taxation of the States, there is in the
Commonwealth as in Canada a power which may intervene
more effectually than the Dominion Executive to prevent
an abuse of power by the States. If, as is probable,
the power over "taxation" is limited to taxation imposed
by the Commonwealth Parliament itself, the doctrine of
Marshall, C.J., is applicable to both State and Common-

1 Per Marshall, C.J., in M'Culloch v. Maryland, 4 Wheaton, 316, 431.
2(1887) 12 A. C. 579.

f

APPROPRIATION AND EXPENDITURE. 187

wealth. But in such a case it might be held, though not
necessarily, that both State and Commonwealth are subject
to no other restriction than that specially provided in sec.
114 — that neither may tax the property of the other. It
may be argued that sec. 114 is exclusive of other
exemptions, , since " property " would be exempt as an
"agency or instrumentality," and if agencies generally
are to be exempt, section 114 is superfluous. But there
may be property which is not a "governmental agency,"
e.g. land of the Commonwealth for a National University, or
a Library or Museum, or propertj' of a State situated in
another State ; and upon these, section 114 would operate.
Adopting the view that the governmental agencies of the
State are exempt from Commonwealth taxation, it remains
to see what they are. " Governmental agencies " have been
described as " the means or agencies through or by the
employment of which the States perform their essential
functions, since if these were not within their reach they
might be embarrassed and perhaps wholly destroyed by
the burdens it (i.e. the Federal Government) should
impose."^ Among these agencies are municipal corpora-
tions or other governing bodies, the courts or the process of
the courts, the salaries of judges or officers of a State; and,
generally, every instrument employed by the government
to carry its powers into execution.

Section 81. All revenues or moneys raised or received
by the Executive Government of the Commonwealth shall
form one Consolidated Revenue Fund.

Appropriation and Expenditure; Issue and Audit. —
By section 83, " No money shall be drawn from the
Treasury of the Commonwealth except under appropriation
made by law."

This emphasizes the constitutional rule of the control of
Parliament over expenditure, as to which there was at one
time much misconception in Australia. " Appropriation by
law " excludes the once popular doctrine that money might
become legally available for the use of the government
^ Cooley, Gonstitutional Law^ p. 61.

188 FINANCE AND TRADE.

service upon the votes of supply of the Lower House.
As will be seen, some appropriations of public money are
made by the Constitution itself; for the rest, it will be
for the Parliament to determine what matters are to be
provided for by permanent and what by annual acts.
The Parliament will also have to determine how public
money appropriated shall be issued from the Treasury,
and to make provision for ensuring that money drawn for
any purpose has been expended upon that purpose. The
Constitution properly leaves the details of "issue and
audit" to be settled by the Parliament. Until provision is
made, the existing laws of the States are to apply (sec. 97).
Provision for the immediate needs of the Commonwealth is
made by a clause in sec. 83, under which the Governor-
General in Council may, until a month after the meeting of
Parliament, draw moneys necessary for the maintenance of
the transferred departments, and for holding the first
elections.

The Consolidated Revenue Fund " shall be appropriated
for the purposes of the Commonwealth in the manner and
subject to the charges and liabilities imposed by this Con-
stitution " (sec. 81). This provision is similar to that
contained in the Constitutions of the Australian Colonies
and the British North America Act, 1867.

A Consolidated Fund has long commended itself to
British statesmen in preference to the assignment of specific
taxes to specific charges. The ear-marking of the revenue
from customs and excise by the Constitution is, however,
an exception to the principle.

" Shall be appropriated " means, of course, by " the
Parliament."

What are "the purposes of the Commonwealth"? Are
they limited to carrying into effect the matters committed
by the Constitution to the Commonwealth Government,
or has the Parliament, with its unlimited power to raise
money, an unlimited power to determine what are the
purposes of the Commonwealth ? In the United States,
after keen controversy, it is now agreed that "the power of

APPROPRIATION AND EXPENDITURE. 189

Congress over the Treasury is in effect absolute, and
extends to the appropriation of money for any object which
in their judgment will conduce to the defence of the
country or promote its welfare." ^ This, however, is under
an express power to " provide for the general welfare." In
Canada, the government whose powers are limited by
enumeration — the provincial government — has power to
raise a revenue by direct taxation " for provincial
purposes " ; and the Judicial Committee has held that this
includes direct taxation "for a local purpose upon a
particular locality," and is not confined to general pro-
vincial purposes, and this notwithstanding that there is
another article under which the Provincial Legislature
may impose licenses "in order to the raising of a revenue
for provincial, local, or municipal purposes." ^ It must be
remembered, however, that amongst the matters of pro-
vincial power are " all matters of a merely local or private
nature in the Province." The Commonwealth Government
is without either of the attributes which seem material to
the conclusion arrived at in the United States and in
Canada. There is also some indication of a restricted
power of expenditure. By section 96, the power to grant
financial assistance to a State is the subject of a special
grant, which, of course, suggests that such assistance
could not be given under the general power to appropriate
moneys for the purposes of the Commonwealth. On the
other hand, the Government of the Commonwealth is a
national government, and for some portions of its dominions
the sole government, and it might not unreasonably be
contended that, as has been said of the Government of the
United States, it may play the part of " a public-spirited
individual who draws his purse strings for the common
good " ; that it may go into the market and do whatever
can be done by the use of money without the exercise of
legislative, executive, or judicial power. ^ This does not

^Hare, American Constitutional Laiv, vol. i., p. 245.

""Bow V. Black, L.R., 6 P.C. 272.

^Hare, American Constitutional Law, vol. i., pp. 246, 248.

190 FINANCE AND TRADE,

necessarily involve any invasion of the powers of the State,
for an unlimited power to appropriate does not imply an
indefinite extension of legislative power. The Parliament
might well be able to provide money for a national
university and yet want the power to acquire land com-
pulsorily for buildings or to exempt it from the operation
of the State laws concerning educational institutions. In
any case, the restriction on the power of appropriation
and expenditure seems to be subject to political sanctions
merely.

Charges and Liabilities. — ''The costs, charges, and ex-
penses incident to the collection, management, and receipt
of the Consolidated Revenue Fund shall form the first
charge thereon " (section 82).

This is the only matter which is specifically created a
charge. The provision is similar to that in existing Con-
stitutions ; and, though the practice may be to appropriate
money for these charges, there can be no doubt that the
opinion of the Imperial Law Officers in 1878 is correct,
that the moneys necessary are " legally available for, and
applicable to, the purposes mentioned .... because they
are, in fact, specifically appropriated by the Statute in
question." Other specific appropriations by the Constitu-
tion are the salary of the Governor-General, which, until
the Parliament otherwise provides, shall be £10,000 (sec. 3),
and the salaries of the Ministers of State, which, until the
Parliament otherwise provides, shall not exceed £12,000 a
year (sec. 66).

The principal "liabilities imposed by this Constitution"
are the following :

1. Sec. 89. — Until the imposition of uniform duties of
Customs, to pay to each State, month by month, the
balance of the revenues collected by the Commonwealth
in that State after debiting to it :

(a) The expenditure therein of the Commonwealth
incurred solely for the maintenance or continuance
as at the time of transfer of any department
transferred.

CHARGES AND LIABILITIES. 191

(6) The proportioa of the State, according to the number
of its people in the other expenditure of the
Commonwealth.

2, Sec. 93. — During the first five years after the imposition
of uniform duties of Customs, and thereafter until Parliament
otherwise provides, to pay balances as provided by sec. 89,
but the credit basis of each State is not collection of duties,
but consumption of imports or produce in the State.

After five years from the imposition of uniform duties of
Customs, Parliament may provide, on such basis as it
deems fair, for the monthly payment to the several States
of all surplus revenue of the Commonwealth (sec. 94).
This wide power is subject to the prohibition of preferences
by sec. 99, and (temporarily) to the provisions of sec. 87.

3. Sec. 87. — During a period of ten years after the
establishment of the Commonwealth, and thereafter until
the Parliament of the Commonwealth otherwise provides,
of the net revenue of the Commonwealth from duties of
customs and excise, not more than one-fourth shall be
applied annually by the Commonwealth towards its ex-
penditure. The balance shall, in accordance with this
Constitution (i.e. sections 89, 93, and 94), be paid to the
several States, or applied to the payment of interest on
debts of the several States taken over by the Common-
wealth (see sec. 105).

This is a contingent liability, and attaches to the
Commonwealth only in respect to one of the possible
sources of revenue. It was assumed, however, as a matter
of political necessity that the Commonwealth must raise a
Customs revenue; and the States which have relied in the
past so largely upon the customs were not prepared for a
financial revolution such as would be involved in a resort
to direct taxation for all State purposes. It was generally
accepted, therefore, that they must be assured of some part
of their accustomed revenue; and, finally, Sir Edward
Braddon's plan, "the Braddon Blot," as it was called for a
time, was adopted, as making a rough provision for the
maintenance of existing conditions.

192 FINANCE AND TRADE.

Sec. 82 " And the revenue of the Commonwealth

shall, in the first instance, be applied to the payment of
the expenditure of the Commonwealth."

The expression, "expenditure of the Commonwealth," is
an ambiguous one, but it is used in sections 87 and 89 to
exclude payment of balances to the States and payment of
State debts. The direction as to first application of revenue
must be subject to the ear-marking of three -fourths of the
revenue from customs and excise under section 87. In
fact, this provision of section 82 really belongs to the
scheme of financial arrangement adopted by the Convention
at Adelaide, and subsequently abandoned in favour of
section 87. By that scheme the maximum ''expenditure
of the Commonwealth in the exercise of the original
powers given to it by this Constitution" and the "expendi-
ture of the Commonwealth in the performance of the
services and the exercise of the powers transferred from
the States to the Commonwealth by this Constitution"
were fixed for a term of years.

In addition to the specific appropriations already referred
to, there are other matters of expenditure which are either
fixed by the Constitution or which, when fixed by the
Parliament, are not freely alterable by it. By section 48
the salary of a member of either House is fixed at £400
a year, but only until the Parliament otherwise provides.
On the other hand, the salary of a justice of the Federal
Court is left to the Parliament to determine, but when fixed
it shall not be diminished during his continuance in office
(sec. 72). As an incident to the transfer of public depart-
ments to the Commonwealth, the Commonwealth assumes
all the current obligations of the State in respect of such
department (section 85, subs, iv.); is bound to compensate
the State for any property passing to the Commonwealth
for the purposes of a department (section 85, subs, iii.) ;
and by section 84 the Commonwealth is subject to certain
present liabilities of the State to officers of public depart-
ments taken over by the Commonwealth.
Financial Relations of the Commonwealth with the

RELATIONS OF COMMONWEALTH AND STATES. 193

States. — These are involved in, but not exhausted by, the
! liabilities imposed upon the Commonwealth. The financial
I difficulties were not completely provided for by securing
I to each State the return of its proper proportion of
; revenue; for, as the colonies relied in unequal degrees
' upon the tariff, a Commonwealth tariff securing to one
j colony the return of an amount suited to its needs would
embarrass others by a surplus or a deficit. It is accordingly
• provided (sec. 96), in terms following those adopted in sec.
87, that " during a period of ten years after the establish-
i ment of the Commonwealth, and thereafter until the
j Parliament otherwise provides, the Parliament may grant
I financial assistance to any State on such terms and condi-
I tions as the Parliament thinks fit." The words *' and
I thereafter until the Parliament otherwise provides" are
I apt enough in sec. 87, but cause some difficulty in sec. 96.
Sec. 87 is a section restrictive of the full power over
appropriation ; the restriction is temporary, and, after the
expiration of its term, may be removed by the Parliament.
But sec. 96 is enabling, and, according to the ordinary
meaning of the terms used in the section, the power to
assist the States would come to an end, when, after ten
I years, the Parliament shall " otherwise " provide, apparently
by some Act of prohibition or by the mere repeal of
existing Acts providing for financial assistance. It might,
indeed, be urged that a legislative body cannot bind itself
in the exercise of its legislative power, and that when
Parliament has " otherwise provided " it can restore the
status quo. But this contention has already been urged
before the Judicial Committee without success. In Brophy
V. A.G. of Manitoba'^ the Board said : "The Chief Justice
of the Supreme Court (of Canada) was much pressed by
the consideration that there was an inherent right in a
legislature to repeal its own legislative acts, and that
' every presumption must be made in favour of the con-
stitutional right of a legislative body to repeal the laws
which it has itself enacted.' .... Their Lordships are

i[1895]A.C. 202.

N

194 FINANCE AND TRADE.

unable to concur in the view that there is any presump-
tion which ought to influence the mind one way or the
other."

It is to be noted, however, that section 51 (xxxvi.)
expressly empowers the Parliament to make laws with
respect to " any matter in respect of which this Constitution
makes provision until the Parliament otherwise provides " ;
and probably, therefore, the power of the Parliament to
grant assistance under sec. 96 is perpetual, and the period
specified in sec. 96 is to be regarded as a term in
the federal bargain indicating that during this transition
period assistance to a necessitous State will be a proper
and probable object of the Commonwealth concern. But
the case is hardly in 'pari materia with the other cases for
which " this Constitution makes provision until the Parlia-
ment otherwise provides."

The colony whose exceptional position caused the prin-
cipal difficulty in the financial adjustment was Western
Australia. By section 95 Western Australia may, subject
to various conditions, continue to impose duties for five
years after the imposition of uniform duties of customs.
These conditions are (1) that the duties shall not exceed
those in force in Western Australia at the time of the impo-
sition of the uniform duties of customs ; (2) that they shall
diminish by one-fifth annually ; and (3) that they shall not
be imposed on goods imported from without the Common-
wealth except when the Western Australian duty is higher
than that imposed by the Commonwealth.

The Debts of the States. — Section 105. " The Parliament
may take over from the States their public debts as exist-
ing at the establishment of the Commonwealth, or a propor-
tion thereof, according to the respective numbers of their
people as shown by the latest statistics of the Common-
wealth, and may convert, renew, or consolidate such debts
or any part thereof; and the States shall indemnify the
Commonwealth in respect of the debts taken over, and
thereafter the interest payable in respect of the debts shall
be deducted and retained from the portions of the surplus

CUSTOMS, EXCISE, BOUNTIES. 195

revenue of the Commonwealth payable to the several
States, and if such surplus is insufficient, or if there is no
surplus, then the deficiency on the whole amount shall be
paid by the several States. See also sec. 87.

Customs, Excise, and Bounties. — It is in regard to customs
and excise duties — '* the tariff" — that there is the most
immediate connection between finance and trade, since
such duties are imposed as well for the regulation of trade
as for the raising of a revenue ; and the main purpose of
the Commonwealth was to secure uniformity in such duties,
and their abolition as regards the intercolonial trade.

i. On the establishment of the Commonwealth, the col-
lection and control of duties of customs and of excise, and
the control of the payment of bounties passed to the Execu-
tive Government of the Commonwealth (sec. 86) ; and the
departments of customs and of excise in each State were
transferred to the Commonwealth (sec. 69). All property of
the State, used exclusively in connection with the depart-
ments controlling customs and excise and bounties, vested
in the Commonwealth (which is to pay compensation there-
for) for such time as the Governor-General in Council may
declare to be necessary ; and the Commonwealth assumed
the current obligations of the State in respect to the trans-
ferred departments (section 85). The laws of the State
relating to the matters transferred will remain generally in
force until the Commonwealth otherwise provides in virtue
of section 108 ; but obviously some provisions are abrogated
by the mere fact of transfer from the separate governments
to a single government. By section 52 the Parliament of
the Commonwealth has exclusive power to make laws
with respect to matters relating to the control of the
departments transferred.^

ii. But notwithstanding these provisions, the States

^ It should, of course, be understood that nothing more is transferred

I than what relates to customs, excise, and bounties. The Customs Acts of

I the Colonies and the Departments of Customs deal with many matters

which are quite outside duties of customs ; these things, and executive and

legislative powers of the States over them, are of course unatfected.

196 FINANCE AND TRADE.

retain the power to impose duties of customs and excise,
and to grant bounties until the imposition of uniform duties
of customs by the Commonwealth Parliament. Upon such
imposition of uniform duties, the power of the Common-
wealth Parliament to impose duties of customs and of
excise, and to grant bounties on the production or export of
goods becomes exclusive, and the State laws imposing duties
of customs or excise or offering bounties cease to have effect.
(Section 90.)

iii. The exclusive power of the Commonwealth Parliament
and the withdrawal of power from the States are subject to
the following provisions :

(a) Under section 88, uniform duties of customs shall
be imposed within two years after the establishment of the
Commonwealth. This is of course merely a directory enact-
ment, unattended by any sanction.

(6) Any grant of or agreement for any bounty lawfully
made by or under authority of the Government of any State
shall be taken to be good if made before the thirtieth day
of June, 1898, and not otherwise. (Section 90.)

(c) " Nothing in this Constitution prevents a State from
granting any aid to or bounty on mining for gold, silver, or
other metals, nor from granting, with the consent of both
Houses of the Parliament of the Commonwealth expressed
by resolution, any aid to or bounty on the production or
export of goods." (Section 91.)

{d) "•. . . A State may levy on imports or exports, or
on goods passing into or out of the State, such charges as
may be necessary for executing the inspection laws of the
State ; but the net produce of all charges so levied shall be
for the use of the Commonwealth ; and any such inspection
laws may be annulled by the Parliament of the Common-
wealth." (Section 112.)

B. TRADE.

The power of the Commonwealth and States in matters
of trade, commerce, and intercourse is subject to an impor-
tant restriction in section 92, which must be considered after

TRADE AND COMMERCE. 197

we have dealt with the nature of the power of the Common-
wealth under section 51 (i.) over trade and commerce with
other countries and among the States.

" Trade " and " Comrnerce" — These terms are used in the
British North American Act, 1867, and the necessity of
putting some limitation upon words of such wide import
has been one of the great difficulties of construing that Act.
In the Commonwealth Constitution, however, they are cut
down by their accompanying words, " with other countries
and among the States." The power of the Parliament,
therefore, is limited to foreign and inter-state trade and
commerce. Tt is impossible to define such a power exactly.
While its nature points to fiscal and economic regulations,
and particularly to the removal of those barriers to trading
intercourse which arise from the existence of separate poli-
tical communities, it is not limited by those objects. In
Gibbons v. Ogden,^ Marshall, C.J., said: "The subject to be
regulated is commerce ; and our Constitution being, as was
aptly said at the bar, one of enumeration and not of defini-
tion, to ascertain the extent of the power, it becomes
necessary to settle the meaning of the word. The counsel
for the appellee would limit it to traffic, to buying and
selling, or the interchange of commodities, and do not admit
that it comprehends navigation. This would restrict a
general term, applicable to many objects, to one of its signifi-
cations. Commerce undoubtedly is traffic, but it is some-
thing more — it is intercourse. It describes the commercial
intercourse between nations and parts of nations in all its
branches, and is regulated by prescribing rules for carrying
on that intercourse." The Commonwealth Constitution uses
the terms "trade and commerce"; but the term "trade,"
while it may serve to recall the regulations of trade which
belonged to our old mercantile system, does not appear to
^xtend or alter the power of the Parliament.^

' (1824) 9 Wheaton, 1.

'^See Lefroy, Legislative Poioer in Canada, p. 551 n., for a view sub-
mitted in Canada, but inapplicable in the Commonwealth as to the signifi-
cance of "trade." "

198 FINANCE AND TRADE.

Some assistance as to the extent of the power may be
found in the Constitution itself, which declares that " the
power of the Parliament to make laws with reference to
trade and commerce extends to navigation and shipping,
and railways the property of any State " (section 98) ; that
Parliament " shall not by any law or regulation of trade or
commerce abridge the rights of a State or the residents
therein to the reasonable use of the waters of rivers for con-
servation or irrigation" (section 100); that Parliament "may
by any law with respect to trade or commerce forbid as to
railways any preference by a State or the authority con-
stituted under any State " (section 102). The power there-
fore includes the regulation and control of transport and
communication between the States, and the means thereof,
whether they are natural or artificial, whether in public or
in private hands. On the other hand, the inclusion in
section 51 of "banking," "bankruptcy and insolvency," "bills
of exchange," and certain other matters as separate and
independent heads of legislation, indicates that " trade and
commerce" does not embrace the whole of what is called
" commercial law."

"Among" is "intermingled with" (per Marshall, C.J., in
Gibbons v. Ogden). The power of the Parliament does not
extend to making a general and uniform law on all matters
of trade and commerce, however desirable such a law ma\''
appear to be ; thus, in the United States, a national com-
bination to control the production of an article, although
its effects were experienced throughout the country, was
held not to be a matter of inter-state commerce, and
therefore could not be regulated or forbidden by
Congress.^

" The commerce of a State which Congress may control
must in some stage of its progress be extra-territorial. It
can never include transactions wholly internal, between,
citizens wholly of the same community, or extend to a
polity and laws, whose ends and purposes and operations

1 United State v. E. C. Knight Coy., 156 U.S. 1. (The case of the Sugar
Trust. )

TRADE. 199

are restricted to the territory and soil and jurisdiction of
such a community." ^

Extent and Limitations of the Power. — Sections 98 and
102 (with section 104) have been already referred to as ex-
pressly asserting or extending the power of the Parliament
under " trade and commerce " ; and on the other hand,
sections 99 and 100 define or restrict the power of the
Parliament. Section 99' provides that " The Commonwealth
{i.e. the Parliament) shall not by any law or regulation of
trade, commerce, or revenue give preference to one State or
any part thereof over another State or any part thereof"
This is an adaptation from the United States Constitution
section ix., clause 6, as judicially construed in the "Pas-
senger Cases." ^ Preferences by laws of a State are not
within the prohibition ; they are sufficiently covered by
the general power of the Commonwealth over "trade and
commerce " ; the special power of " The Parliament," and
the powers of the Inter-State Commission.

The Power of the Parliament — Exclusive or Concurrent.
— After long controversy, the Supreme Court in 1851
decided in the case of Cooley v. Board of Wardens of the Port
of Philadelphia ^ that the power of Congress to regulate com-
merce with foreign nations, and among the several States,
was necessarily exclusive whenever the subjects of it are
national in their character, or admit only of one uniform
system or plan of regulation. Where the power of Congress
to regulate is exclusive, the failure to make express regu-
lations indicates its will that the subject shall be left free
from any restrictions or impositions, and any regulation of
the subject by the States, except in matters of local concern
only, is repugnant to such freedom.

But the power to regulate commerce covers a vast field,
containing many and exceedingly various subjects, quite un-
like in their nature — some demanding a single uniform rule,
others as imperatively demanding diversity ; in the latter
case, in the absence of legislation by Congress, the State

' Cooley, Co7istitutional Laiv, p. 68. ^ 7 Howard, 283.

3 12 Howard, 299.

200 FINANCE AND TRADE.

Legislature may properly make provision, though the
matter is one of inter-State commerce. Finally, State
legislation for the protection of the life, liberty, safety,
health, comfort of its people, and for the protection of their
property — the exercise of what is known as the " police
power " — is not invalid merely because it incidentally affects
inter-State commerce, if it does not extend beyond what is
reasonably necessary for its legitimate purpose. But in all
cases, of course, the legislation of the State, so far as it
affects inter-State commerce, is liable to be over-ridden by
an exercise of the paramount power of Congress.^

The main difficulty of these principles lies in their
application — in determining what matters are of national
concern requiring one uniform set of regulations, and what
are proper for local regulation. But the statement of the
difficulty suggests a question, which in a new Constitution
demands consideration. It has been pertinently observed ^
that " the question, whether or not a given subject admits of
only one uniform system or plan of regulation, is primarily
a legislative question, not a judicial one. For it involves a
consideration of what on practical grounds is expedient,
possible, or desirable ; and whether, being so at one time or
place, it is at another. ... It is not in the language itself
of the clause of the Constitution now in question, or in any
necessary construction of it, that any requirement of uni-
formity is found in any case whatever. That can only be
declared necessary in any given case as being the deter-
mination of some one's practical judgment. The question
then appears to be a legislative one ; it is for Congress and
not for the Courts — except indeed in the sense that the
Courts may control a legislative decision so far as to keep it
within the bounds of reason, of rational opinion. If this be
so, then no judicial determination of the question can stand
against a reasonable enactment of Congress to the con-

^ The principles are stated, and the cases collected in Bobbins v. Shelby
County Taxing District (1887), 120 U.S. 489. See also chapter xviii.— The
States.

2 By Professor J. B. Thayer, Gasen on Constitutional Law, p. 2190.

FREEDOM OF TRADE AND COMMERCE. 201

trary. ... It would seem to follow that the Courts should
abstain from interference except in cases so clear that the
legislature cannot legitimately supersede its determinations;
for the fact that the legislature may do this in any given
case, shows plainly that the question is legislative and not
judicial. ... If it be thought that Congress will very likely
be dilatory or negligent, or that it may even purposely allow
and connive at what should be forbidden — that is quite
possible. But the objection is a criticism upon the arrange-
ments of the Constitution itself, in giving so much power to
the legislature and so little to the Courts. It is to be
observed, however, that the great object which the makers
of the Constitution had in view as to this subject, was to
secure power and control to a single hand, the general
government, the common representative of all, instead of
leaving it divided and scattered among the States ; and
that this object is clearly accomplished " by the control of
Congress. These are weighty reasons against the test
applied by the American Courts, and may well prevail in a
political system where the courts have been long accus-
tomed to the supremacy of the legislature. Our Courts are
not likely to declare any power of the Commonwealth Par-
liament to be an exclusive power, unless they find good
warrant for it in the Constitution itself

Freedom of Trade and Commerce. — The section in the
Constitution which bears directly on the matter is section
92, whereby

" On the imposition of uniform duties of customs, trade,
commerce, and intercourse among the States, whether by
means of internal carriage or ocean navigation, shall be
absolutely free." This section was commended to the Con-
vention as "a bit of layman's language on which no legal
technicalities can be built." The case was an unfortunate
one for the exhibition of the layman's art, for of all vague
and varying words in the political vocabulary, "free" is
probably the worst. Here we can do no more than indicate
a few of the difficulties that beset the application of the
section.

202 FINANCE AND TRADE.

The most obvious meaning is that which springs from the
association of the clause with the imposition of uniform
duties, and the declaration that the power of the Parliament
over customs, excise, and bounties shall be exclusive.
Noscitur a sociis. " Absolutely free " would therefore mean
that commerce among the States was to be free of all duties
of customs and excise ; and, as the power of the States to
impose such duties has been already taken away by section
90, section 92 would operate as a restriction upon the Com-
monwealth Parliament alone. For such a limited applica-
tion, some support might be found in the observations of
Marshall, C. J., in Barron v. Mayor of Baltimore,^ " that the
limitations on power, if expressed in general terms, are
naturally, and we (i.e. the Supreme Court of the United
States) think necessarily, applicable to the government
created by the instrument. They are limitations of power
granted by the instrument itself; not of distinct govern-
ments framed by different persons and for different pur-
poses." But the section is associated with others, which,
while expressly conferring power on the Commonwealth,
are expressly taking away or saving the powers of the
States, not in matters incidental or collateral, but in a
matter vital to the Commonwealth. In such a case it is
reasonable to suppose that the section must have a wider
interpretation ; that it operates upon the Commonwealth
Parliament and the States ; and that at the least the absolute
freedom of trade, commerce, and intercourse is impaired by
any charge (not merely of customs and excise duties), by
whatever name it may be called or on whatever pretence it
may be levied, which is in substance a tax (in the broad
sense of the word) upon the intercourse of persons, or the
commerce in goods among the States. Charges for services
rendered are not ejusdem generis ; they are in promotion,
not in hindrance of i ntercourse. Charges for railway services,
reasonable tolls for the advantage of ports and improved
waterways, may be imposed. But a charge for services may
become a tax if the charge is unreasonable, or if it is used
1 (1833) 7 Peters, 243.

FREEDOM OF TRADE AND COMMERCE. 203

to the prejudice of intercourse among the States. Dis-
criminating and preferential railway charges are dealt with
in section 102, and a question may well arise whether they
are to be exclusively dealt with under that section, or fall
also within the control of the judicial power.

It is not clear that " absolutely free " in section 92
applies to obstructions or restrictions upon commerce
which are not in the nature of a tax. It is natural to
turn to the American decisions for aid in this matter.
There we find that the expression " free from any restric-
tions or impositions," and similar phrases, are used by the
Courts in describing the total inability of the States to
regulate inter-State commerce. Thus, in Rohhins v. Shelby
County Taxing District,^ the Supreme Court of the United
States, stating the doctrine of constitutional law on the
subject of the inter-State commerce, says : that " where the
power of Congress to regulate is exclusive, the failure of
Congress to make express regulations indicates its will that
the subject shall be left free from any restrictions or imposi-
tions ; and any regulation of the subject by the States,
except in matters of local concern only, is repugnant to
such freedom." Again, in re Rahrer,'^ the Court says :
" The laws of Iowa, under consideration in Bowman v.
Railway Company, 125 U.S. 465, and LeAsy v. Hardin,
135 U.S. 100 .... amounted, in fact, to a regulation of
(foreign or inter- State) commerce. Hence .... it was
held that, so long as Congress did not pass any law to
regulate it specifically, or in such a way as to allow the
laws of a State to operate upon it, Congress thereby indi-
cated its will that such commerce should be free and
untrammelled, and therefore the laws of Iowa referred to
were inoperative in so far as they amounted to regulations
of foreign or inter-State commerce. It followed as a
corollary that when Congress acted at all the results of
its action must be to operate as a restraint upon that
perfect freedom which its silence ensured." In other words,
" freedom " means absence from all interference. But in
1(1887) 120 U.S. 489. "-(\%%l) 140 U.S., p. 545.

204 FINANCE AND TRADE.

the same case the Court is careful to point out that the
Constitution does not guarantee the absolute freedom of
inter-State commerce, but only protects it from the
embarrassment of diverse regulations by the States by
confiding the powers of regulation exclusively to Congress.
The Commonwealth Constitution does the very thing which
the United States Constitution does not do. By a clause
which binds both the Commonwealth Parliament and the
States, it provides that trade, commerce, and intercourse
shall be " absolutely free." But if inter-State commerce is
to be absolutely free from all interference or regulation,
what becomes of the power confided to the Commonwealth
Parliament to make laws with respect to trade and com-
merce among the States ?

It may be that section 92 expresses as to the States
the doctrine of non-interference with inter-State commerce,
which has been declared in the United States to arise by
necessary implication as to matters of a national character.
If so, it must apply unequally to State and Common-
wealth; and the latter, while it may be restrained by it
from taxation, prohibition, and perhaps from all regulation,
the essential and unequivocal nature of which is to impede
commerce, may for the rest operate freely upon the matter.
And, of course, it is hardly a correct assumption that every
regulation of commerce, even by the State, is an intrusion
upon freedom of commerce, a truth which is recognized in
the sufierance of the States to deal with those matters of
inter-State commerce which admit of local regulation-
" aids to commerce," as they have been called. ^

The embodiment of the United States doctrine of
freedom would still leave it open to the States to make
laws under its police power for the life, safety, and health
of its citizens, though such laws might incidentally affect
foreign or inter-State commerce.^

' County of Mobile v. Kimball (1880), 102 U.S. 691.

2 The United States Ordinance of 1787 for the Government of the North-
west Territory provided that all navigable waters should be for ever free j
and on the admission of new States an Act of Congress has provided for

. INTER-STATE COMMISSION. 205

It is to be noticed that section 92 only becomes operative
on the imposition of uniform duties of customs ; and during
the time preceding such imposition the Commonwealth is,
like the United States, without express provision on the
subject.

It is submitted that in the Commonwealth the mere
grant of the commerce power to the Parliament does not
make it in any way exclusive, and that the States may,
until uniform duties are imposed, freely deal with inter-
State commerce, except so far as they are expressly
prohibited (as under section 117), or as may be incon-
sistent with the legislation of the Parliament. After
uniform duties are imposed, the further restraint will
depend on the exclusive power of the Commonwealth over
duties, and on the construction put upon section 92. The
Commonwealth Constitution, unlike the Constitution of
the United States, makes a particular enumeration of
exclusive powers; and it is reasonable to suppose that if
the commerce power had been intended to be exclusive, it
would have been included in the enumeration.

The Inter-State Commission. — Section 101. There sliall
be an Inter-State Commission, with such powers of
adjudication and administration as the Parliament deems
necessary for the execution and maintenance within the
Commonwealth of the provisions of this Constitution relat-
ing to trade and commerce, and of all the laws made
thereunder.

The nature of the Commission is indicated in the clause ;
it is to combine the functions of adjudication and adminis-
tration. It was suggested by the Inter-State Commerce
Commission in the United States and the Railway and
Canal Commission in the United Kingdom, and may be

free navigation. The cases in which the Courts have considered this
provision may be referred to in connection with section 92. The most
important are : Escanaha Company v. Chicago, 107 U.S. 678 ; Cardwell v.
American Bridge Company, 118 U.S. 205 ; Hamilton v. VicTcsburg Railway
Company, 119 U.S. 280; Huse v. Glover, 119 U.S. 543; Sands v. Manistee
Improvement Company, 123 U.S. 288. See Cooley, Constifi(tio7ial Law,
pp. 85, 86, and notes.

i

206 FINANCE AND TllADE.

expected to exercise powers of each of those bodies. The
Inter-State Commerce Act, 1887 (U.S.), provided for the
appointment of a Commission to carry out the objects of
the law, which were in the main to secure just and
reasonable charges for transportation ; to prohibit unjust
discrimination in the rendition of like services under
similar circumstances and conditions ; to prevent undue
or unreasonable preferences to persons, corporations, and
localities ; to inhibit greater compensation for a shorter than
for a longer distance over the same line ; and to abolish
combinations for the pooling of freights. The Commission
is a special tribunal, whose duties, though largely adminis-
trative, are sometimes semi-judicial ; but it is not a Court
empowered to render judgments and enter decrees.^ It
investigates facts ; reports and makes orders upon them ;
but to enforce those orders it must resort to the Courts,
and the Courts may investigate the whole merits of the
controversy, and form an independent judgment.

The Railway and Canal Commission in England, as
constituted by the Act of 1888, is empowered to order the
Railway Companies to obey the provisions of numerous
Acts of Parliament, under which they are bound, amongst
other things, to afford reasonable facilities for traffic ; and
are forbidden to give undue or unreasonable preference or |
advantage in favour of any person, company, or descrip-
tion of traffic. Such undue preference may arise from a
difference in treatment to any trader or class of traders,
or to the traders in any district, in respect of the same
or similar merchandise, or of the same or similar services.
It may intervene, not merely at the request of an indi-
vidual alleging the infringement of his right, but also on
the complaint of the Attorney General, the Board of Trade,
and various local authorities or associations of traders or
freighters, without proof that the body is aggrieved by the
matter complained of, if the Board of Trade has certified
the body to be a proper one. In addition to ordering the I
Company to redress the wrong for the future, the Com-
^ Rorer, Inter-Slate Law, p. 421 n.

INTERS TATE COMMISSION. 207

mission may award damages to a person aggrieved in full
satisfaction of any claim which the party would have had
by reason of the matter of complaint. The Commission
has now full power to carry out its awards, and is armed
with the powers of a court of record.

How far the Inter-State Commission will resemble the
one body or the other can be determined only after it is
appointed, for while its powers cannot extend beyond the
execution and maintenance of the provisions of this Con-
stitution relating to trade and commerce and of all laws
made thereunder, its only powers within those limits are
such as the Parliament thinks it necessary to confer upon
it. There is of course no means of compelling the Parlia-
ment to confer any powers upon the Commission, but it is
to be noted that the power of the Parliament to forbid
railway preferences as undue or unreasonable, or unjust to
any State, is dependent upon a finding to that effect having
been made by the Commission (sec. 102). It is well settled
in England that what is undue or unreasonable is a question
of fact to be determined in each case, by looking at the
matter broadly and applying common sense. The fact that
railways in Australia are the property of the State, and that
they have been constructed in many cases for quite different
reasons than immediate gain or profit from their traffic,
leads to the enactment of two provisions in the Constitution :

1. That, in determining whether a preference or discri-
mination is undue or unreasonable or unjust to any State,
regard is to be had to the financial responsibilities incurred
by the State in connection with the construction and main-
tenance of its railways. (Section 102.)

2. Nothing in this Constitution shall render unlawful
any rate for the carriage of goods upon a railway the
property of a State, if the rate is deemed by the Inter-State
Commission to be necessary for the development of the
territory of the State, and if the rate applies equally to
goods within the State and to goods passing into the State
from other States. (Section 104).

The questions that have arisen in the past as to railways

208 FINANCE AND TRADE.

in Australia, and therefore presumably the class of case
with which the Commission will be mainly concerned, are
singularly different from the typical preference and discri-
mination cases in England and America. Speaking gene-
rally, it may be said that the problem in England and
America has been how to protect the trader and the
passenger against various kinds of oppression by the Rail-
way Companies, and to discourage combination and to
encourage competition. In Australia, the question has
been rather how to reconcile the interests of the railway
proprietors — the Governments — each of which has deemed
itself entitled to a monopoly of certain traffic. It is only
fair to add that cases of favour or oppression of individuals,
which account for much of English and American legisla-
tion, have been conspicuously absent in Australia. Favour
of localities, however, is not unknown — the anxiety of New
South Wales and Victoria has been to bring the trade to
their respective capitals as much as to secure traffic for
their railways.

The powers of the Inter-State Commission may extend
beyond the railways and transportation. They may for
example be called on under section 99 to determine whether
the Commonwealth has by any law of trade or commerce
given preference to a State or part thereof over another
State or part thereof; or, under section 100, to decide
whether the Commonwealth has abridged the right of a
State or resident therein to the reasonable use of the waters
of rivers for conservation or irrigation. It is submitted,
however, that these matters will still be within the
cognizance of the Courts so far as the redress of individual
grievances is concerned, as by the award of damages in
proper cases. Possibly the Parliament may be able to
confer upon the Commission the power to award damages
to a person aggrieved which the Railway Commission in
England now enjoys; but it is conceived that a person
aggrieved could not be compelled to resort to the Commis-
sion, and it may be doubted whether the recovery of
damasres in the Inter-State Commission would be a bar to

INTER-STATE COMMISSION. 209

an action in the Courts, though of course it would affect the
amount recoverable. The Inter-State Commission seems to
be in the position of some other bodies which have been
referred to — it has mixed administrative and judicial
powers, but it is not a court. It belongs not to the "judi-
cial power," but to the executive — the very terms which
describe its possible functions for " the execution and main-
tenance .... of the provisions of this Constitution,"
relating to trade and commerce, "and of all laws made
thereunder," recall the terms in section 61 establishing and
vesting the executive power.

Section 103. The members of the Inter-State Commission :

i. Shall be appointed by the Governor-General in Council ;

ii. Shall hold oflfice for seven years, but may be removed
within that time by the Governor-General in Council on an
address from both Houses of the Parliament in the same
session praying for such removal on the ground of proved
misbehaviour or incapacity ;

iii. Shall receive such remuneration as the Parliament
may fix; but such remuneration shall not be diminished
during their continuance in office.

CHAPTER XII.

THE EXECUTIVE POWER: ORGANIZATION OF
THE EXECUTIVE.

Sir William Anson introduces the subject of his second
volume on the Law and Custom of the Constitution, by
the observation that " In every political society there must
be some person or body which acts on behalf of the whole,
which represents the state as dealing with other states,
which represents its collective force and will in maintaining
amongst its own citizens the rules which the society has
made or accepted for the preservation of order and the pro-
motion of the public welfare." In the history of Australia,
the want of such an authority to speak and to act for the
whole has been as potent a factor in producing union as the
absence of a common legislative power. The authority
must be continuous, and not occasional ; it must be capable
of prompt and immediate action ; it must possess knowledge
and keep its secrets ; it must know discipline. In a word,
it must have qualities very different from those which
belong to the large representative and popular bodies which
in modern times exercise legislative power.

It is characteristic of English methods that there has
been small attempt to analyze the nature of the threefold
division of governmental functions which we recognize.
When the distinction was being established, men were
content to reason that this particular power belonged to
the King in his Council, that to the King in his Courts,

1

THE EXECUTIVE. 211

and that other to the King in Parliament. It was only
after the lines of action were settled in England that men
began to analyze for the benefit of others who had their
own constitutional arrangements to make. The supremacy
of Parliament has generally made it unnecessary for us to
consider the distinctions with scrupulous accuracy, and the
existence and undoubted validity of a number of anomalies
has kept us from over refinement. It is for the King to
put the law into operation and to admonish his subjects
that they keep it ; to execute the law by bringing offenders
to justice, by maintaining and supporting courts of justice,
and by carrying out the judgments of those courts. On the
other hand, the King may not alter the law ; may not make
an offence where none is ; may not establish new penalties
or novel tribunals. These matters belong to the Parliament.
Such are the lines upon which the distinction between
executive and legislative has been founded. The typical
executive officers have been the sheriff and the constable.

But there is much more in government than mere execu-
tion of the law, whether enacted or unenacted ; just as there
is more in human conduct than the creation of legal
relations. The state is a going concern; it has affairs
which must be managed with prudence and judgment and
which are not necessarily related to law in any other sense
than that in which all conduct may be bounded by legal
restraints. It is perfectly true that a very great part of
this business of the state is regulated by law more than is
the like business of private individuals; as an owner
of property and as an employer of labour, the state sets
! rules to its agents ; and to a very great extent, in Australia
,1 at any rate, these rules create rights against the Crown.
I But were those laws directing and controlling the manage-

■ ment of the state affairs repealed, the business would not
' itself come to an end ; it would simply have to be carried
1 on under conditions of greater freedom and more responsi-
I bility by the agents of the state. In modern and settled

■ times, it is the conduct of the business of the state which
men mean by government ; the execution of the law is

212 THE EXECUTIVE POWER.

assumed as a thing of course; and the term "executive"
has seemed little apt to describe functions which are
so far removed from justice and police. Sir G. C. Lewis
suggested that the term "administrative" would serve
better to indicate the " stewardship " or " management " of
government.

In speaking of the Executive Government, then, the term
" Executive " must be understood in a very broad sense ;
and we are not to expect a complete statement of the
functions of the Government in a legal instrument. For
more than one reason. Statutes defining the Constitutions of
the Colonies have been almost silent on the subject of the
powers as of the organization of the Executive. In the first
place, the legislative power has included the power of
making full provision for the execution of the law.
Secondly, a large measure of executive power resides in the
prerogative of the Crown, and has been conferred through
prerogative acts and not by Statute, lest thereby the pre-
rogative should be prejudiced. Finally, the organization of
the Government and the relations of the Ministry and
Parliament in our system are a very type of matters which
are not under the continual direction of organic laws, but
are freely organized as utility has suggested or may suggest
within the ultimate bounds of law. The attempts which
have from time to time been made to reproduce in terms of
law for the colonies some of the conventions of the British
Constitution — as in the relations of the two Houses of the
Legislature as to Money Bills — have not been very success-
ful. Constitutional Statutes for the colonies, and even the
prerogative instruments which accompany them, do no
more than hint at the Cabinet System, and the delicatea
relations of the Crown and Parliament. They differ fromTJ
the British Constitution on which they are modelled,
principally in this — that they do hint at the Cabinet
System. They contain some provisions which imply a :
Parliamentary executive ; they speak of " ofiicers liable to
retire upon political grounds," even of "responsible ministers
of the Crown." It would be impossible to frame a

extent: 213

constitution upon the Law of Victoria such as the Conven-
tion at Philadelphia in 1787 framed upon the Law of the
British Constitution as expounded by Blackstone.

EXTENT OF EXECUTIVE POWER.

The short chapter ii. on the "Executive Government,"
then, is necessarily suggestive rather than expressive; it
passes in rapid survey a very great extent of ground. By
section 61, the executive power of the Commonwealth
"extends to the execution and maintenance of this Con-
stitution and of the laws of the Commonwealth." The
executive power therefore is not limited to the execution of
the enactments of the Commonwealth Parliament ; it is to
maintain the Constitution, a duty the import of which can
of course be gathered only from a consideration of the whole
instrument. It has been already pointed out, in considering
the incidental powers of the Legislature, that the executive
numbers amongst its duties the protection according to the
common law, of the organs of the Commonwealth govern-
ment— that in fact there is a peace of the Commonwealth as
well as a peace of the States,^ and of this peace the
Executive is the guardian.

There are of course many powers conferred expressly
upon the principal executive officer in the Commonwealth,
the Governor-General. This is notably the case in the
chapter on the Parliament, where the Governor-General has
important powers and duties in relation to constituting,
summoning, proroguing, and dissolving the Parliament.
But there are other powers and duties which, though not
in terms conveyed to any department, primarily at any rate
fall to the Executive as the appropriate organ for Com-
monwealth action, e.g. by section 119 " The Commonwealth
shall protect every State against invasion, and on the
application of the Executive Government of the State
against domestic violence."

Incidentally, the declaration that the executive power
extends to the execution and maintenance of this Constitu-
^Cf. United States— /n re Neagle (1889), 135 U.S. I.

214 THE EXECUTIVE POWER.

tion is a warning against a not unlikely tendency to
exaggerate the jurisdiction of the Courts as guardians of
the Constitution. There is no provision in the Constitution
applicable to the Judiciary which makes it in any special
way the guardian of the Constitution ; that protection arises,
as will be seen, solely as an incident of judicial power. It
is not to be assumed that every power and function, because
it is provided for in the Constitution, is necessarily cogniz-
able in some way by the Courts. In many matters the
legislature, and in many others the executive, will be the
final interpreters of their duties. The duty of the executive
government to execute and maintain the Constitution, as
every other duty involving the exercise of a discretion, is a
duty attended by political sanctions only.

ORGANIZATION OF THE EXECUTIVE GOVERNMENT.

The establishment of a federal executive power of course
adds to the complexity of governmental relations. Although
in the past complexity and not simplicity in the sources of
laws has been characteristic of our colonial institutions,
there has been in each of the colonies but a single executive
and a single system of courts to enforce those laws. In the
Commonwealth duality runs through all the functions of
govern ment.i It is true that the scheme of the Constitu-
tion is to reproduce the Crown in the Commonwealth ; and
just as the Queen is a constituent part of the Parliament,
so the Executive power of the Commonwealth is vested in the
Queen (as is the executive government in Canada), though
it is exerciseable by the Governor-General as the Queen's
representative. It has already ^ been pointed out that,
except in a few cases, colonial governments have no cor-
porate existence save in the Crown, and that it has been a
question whether colonial ministers hold office under the
Crown. The Letters Patent command " Our Ministers and

^ But the State Executive may be used as the instrument of the Common-
wealth. This will be further considered under the head of the States.

"^Ante, "Nature and Authority of the Federal Commonwealth-Union
under the Crown," chapter iii.

ORGANIZATION. 215

Officers " in the colonies to be obedient, and the Instructions
speak of " Our Executive Council " ; but despatches from
the Colonial Office to the Governor generally speak of
** Your Ministers." The ordinary usage of the Colonial
Office was perhaps not unconnected with the fact that the
" Colonial Ministers of the Crown," " Her Majesty's Ministers
for Victoria," were associated with awkward claims. The
Commonwealth Constitution brushes aside all doubts on
this question by declaring that Commonwealth Ministers
are the "Queen's Ministers of State for the Common-
wealth " (section 64) ; and in section 44 it speaks of the
" Queen's Ministers for a State."

Notwithstanding the general vesting of executive power
by section 61, it is within the discretion of the Parliament
to provide the machinery for carrying out its own laws, to
establish bodies or offices to which their execution is en-
trusted, and it would appear even to designate the persons
who shall constitute such bodies or till such offices. It is
long since our Legislatures departed from the practice of
laying down merely the broad outlines of law ; the
characteristic of British legislation has been extreme
minuteness of enactment, the extent to which it has
plunged into the details of administration. It is true that
at the present day there is a tendency in the Legislature to
permit much to the Crown in Council, or in the colonies to
the Governor-in-Council. Even in the United States it is
admitted that the authorities which are to execute an act
of the Legislature, as distinguished from a power created by
the Constitution, are within the discretion of the Legislature
— " the authority which makes the laws has large discretion
in determining the means through which they shall be
executed ; and the performance of many duties which they
may provide for by law, they may refer either to the chief
executive of the state, or at their option to any other
executive or ministerial officer, or even to a person specially
named for the duty." ^

^Cooley, Constitutional Limitations^ p. 135-6. And see Kendall v. U.S.^
12 Peters, 524.

216 THE EXECUTIVE POWER.

Where particular powers are granted to a particular
authority it is of course not in the power of the Legislature
to commit them elsewhere, unless, as in the case of the
appointment of civil servants, it is expressly provided that
the Legislature may confer the power on some other
authority.

POWERS OF THE EXECUTIVE GOVERNMENT.

The exceptional reference to executive power in the
Commonwealth Constitution, and the provision that it
shall be exerciseable by the Governor-General, raise a
question of great importance which has been considered
more than once even under the colonial constitutions. The
opinion was strongly held by the late Chief-Justice Higiu-
botham (Victoria) that under the Constitution Acts of the
Colonies the executive power of self-government was no
less complete than the legislative power, that " the executive
government of Victoria possesses and exercises necessary
functions under and by virtue of 'the Constitution Act'
similar to and co-extensive, as regards the internal
affairs of Victoria, with functions possessed and exercised
by the Imperial Government with regard to the in-
ternal affairs of Great Britain," and that " the Executive
Government of Victoria in the execution of the statutory
powers of the Governor express and implied and in
the exercise of its own functions, has a legal right
and duty, subject to the approval of Parliament, and
so far as may be consistent with the Statute law and
the provisions of treaties binding the Crown, the Govern-
ment, and the Legislature of Victoria, to do all acts and to
make all provisions that can be necessary, and that are in
its opinion necessary or expedient for the reasonable and
proper administration of law and the conduct of public
affairs, and for the security, safety, or welfare of the people
of Victoria."^ The Governor having thus a Statutory
authority to exercise within the colony, every power of
the Crown belonging to its internal government, such
1 Toy V. Mmgrove (1888), 14 V.L.R. 349, at p. 397.

1

POWERS. 217

authority could not be enlarged, lessened, or withdrawn by
the Crown, and consequently the grant of powers by
prerogative instruments was idle, and the attempt to define
and limit the exercise of such powers was illegal.^ The
Chief-Justice held accordingly in the Chinese Immigration
case — Toy v. Musgrove — that the executive government of
Victoria could exercise the power (which was assumed to
be part of the prerogative) of excluding aliens, though no
such power had been conferred on the Governor by the
Letters Patent, Commission, or Instructions. The full Court
held by a majority that the Constitution Act had for its
primary object the establishment of a bi-cameral legislature
with full legislative power, and that though undoubtedly it
contained provisions which indicated an intention to intro-
duce a system of responsible government, it was impossible
to infer from these isolated expressions a grant to the
Executive Government of all the powers over internal
affairs exerciseable by the Crown in the colony.

The difference between the Constitution Acts of the
Colonies and the Commonwealth Constitution lies, as has
already been pointed out, in the explicit grant of executive
power by the latter, and it must be conceded that the
Governor-General has, virtute officii, and without special
grant from the Crown, the "executive power of the
Commonwealth." But the question remains what that
power is, and section 61 itself gives the answer: "It
extends to the execution and maintenance of this Consti-
tution and of the laws of the Commonwealth." It is of
course clear that the Executive Government of the Common-
wealth cannot claim power within the sphere of action
reserved to the States; and it seems not less obvious that
the subjects committed to the Commonwealth Parliament —
save in the matters expressly committed to the Executive
as well as the Legislature (sec. 70) come within the sphere
of executive action as distinguished from deliberation and

^ The opinions of the Chief Justice are also set out in a memorandum
addressed by request to the Secretary of State (Lord Knutsford). See
Memoir of George Higinbotham, by Edward E. Morris, p. 209.

218 THE EXECUTIVE POWER.

representation to the Imperial Government, only when
there has been legislation upon them and only to the extent
of carrying out that legislation. ^ Thus, the power of the
Parliament to make laws with respect to " external affairs "
does not per se imply an executive power to make treaties
nor " the relations of the Commonwealth with the islands of
the Pacific" a power to annex Pacific islands. There are,
in fact, many powers which the Commonwealth Government
may desire, but which it will enjoy, if at all, not directly
under the Constitution, but by grant from the Crown, or by
virtue of some Act of the Parliament over which, of course,
the Crown has control. This is perhaps recognized by
section 2, whereby the Governor-General has, and may
exercise in the Commonwealth, subject to this Constitution,
"such powers and functions of the Queen as Her Majesty
may be pleased to assign to him"; but the application of
that section to matters other than those incident to the
Parliament and " legislative power " must from its place in
the Constitution be doubtful.

There is one power commonly associated with executive
power of which, from the important part which it has
played in the Constitutional arrangements of the self-
governing colonies, a word must be said. The pardoning
power — the prerogative of mercy — has, in all the colonies,
been delegated to the Governor by the express terms of the
Commission or Instructions. The Crown has in practice
conferred upon Colonial Governors only a limited power to
pardon offenders ; and until lately the matter stood, to
some extent, outside the scheme of responsible government
in Australia, since the Governor, though bound to consult
his Executive Council, was specially instructed to decide
"either to extend or to withhold a pardon or reprieve,
according to your own deliberate judgment, whether the
members of our said Executive Council concur therein or
otherwise." It was not until 1892 that the matter was put
upon a footing satisfactory to the Australian Colonies by

^ A contrary view has been held in Canada with reference to the powers
of the Dominion and Provincial Executive. See Lefroy, 111-114.

POWERS, 219

' the adoption of the practice obtaining in Canada, whereby
\ the instruction as to personal consideration is confined to
cases in which a pardon or reprieve ** might directly aifect
the interests of our Empire or of any Country or place
beyond the jurisdiction of the Government of the Colony."
Even now, Colonial Governors are not empowered to exer-
cise the full prerogative of pardon — the delegation applies
only to convicted oflfenders ; and it happens from time to
time that an Australian Government desiring to pardon an
alleged offender, before conviction, has to seek the aid of the
Imperial Government, and does not always obtain it.

The question is, whether the Commonwealth Government
is in the ordinary or an exceptional position as to this
prerogative. It is one which is essentially necessary to the
administration of criminal law ; but an unbroken constitu-
tional practice is sufficient warrant for the opinion expressed
by the Chief Justice of Canada, that " it is not incidental to
the office of a Colonial Governor, and can only be exercised
by such officer in the absence of legislative authority under
powers expressly conferred by the Crown." ^ Is section 61
a sufficient legislative authority? The matter is not free
from doubt; but it is submitted that under section 61
the Governor-General has statutory authority to pardon
offenders. The Imperial Government, however, appears to
hold a different view, for the power is expressly given, with
certain limitations, by section 8 of the Instructions. (See
Appendix.) 2

The executive power in every part of the Queen's
dominions is part of the prerogative, and therefore section
61, so far as it vests generally the executive power of the
Commonwealth in the Crown, is merely declaratory of the
comrnon law. The British North America Act, 1867,
-s^ion 9, uses more appropriate terms when it says : " The

^The Pardoning Power Case (A.G. for Canada \. A.G. for Ontario)*
23 S.C.R. 468-9.

^In America it has been laid down that though the power to pardon
offenders is vested by several State Constitutions in the Governor, it is
not a power which necessarily inheres in the Executive. {State v. Dunning,
9 Indiana, 20.)

220 THE EXECUTIVE POWER.

Executive Government, and authority of and over Canada,
is hereby declared to continue and be vested in the Queen,"
The statutory authority to the Governor-General to exercise
the executive power cannot of course be withheld or with-
drawn by the Crown from the office ; and, practically, this
will suffice to make the Governor-General's power, in many
cases, exclusive of all other exercise by the Crown. But in
some cases the existence of a power in the Governor-General
may still admit of its exercise by the Crown ; and in such a
case the ordinary presumption in favour of the prerogative
would, notwithstanding the pointed designation of the
Governor-General as " the Queen's representative," seem to
prevent the Crown from being limited to the exercise of the
power through the Governor-General. Thus, though the
Governor-General may exercise the pardoning power of the
Crown, the Crown may also exercise the power through
Imperial Ministers, and that whether the Governor-General
has refused to pardon or not. The law on petitions of right
affords an interesting illustration of the vitality of preroga-
tive in a matter which is onerous rather than beneficial.
Most of the Australian Colonies have passed Statutes
establishing a procedure analogous to that upon the Petition
of Right; but the Imperial Law Officers have uniformly held
that the powers conferred by these Statutes upon the
Colonial Executive do not supersede the common law
powers of the Crown. Consequently, when the Colonial
Executive has refused to co-operate in the submission of
claims against the Government to a judicial tribunal,
petitioners have carried their claims to the Queen, and the
Secretary of State, after consultation with the Imperial Law
Officers (as to Western Australia in 1897, South Australia in
1894, and New South Wales in 1863), has, as a matter of
ministerial duty, advised her Majesty to grant \iQY fiat that
right be done in the Court of the colony concerned.

There are many powers in the Constitution which are in
terms vested not in the Crown but in the Governor-General,
or the Governor-General in Council. Some of these consist
of powers which, according to the theory of the British

POWERS. 221

Constitution, belong to the Crown as supreme executive
authority, and would, if the Constitution were silent, be
exerciseable in the Commonwealth by such authority as the
Crown might designate. Others are the mere creation of
the Constitution, and belong to the Governor-General as the
Ministerial officer, under that instrument appointed. The
latter are no doubt exerciseable by the Governor-General alone.
As to the others, there is room for some doubt. By section
68, " the command in chief of the naval and military forces
of the Commonwealth is vested in the Governor-General as
the Queen's representative." Here, though the power is a
prerogative one, its nature makes it exclusive. And it is
probably a safe general conclusion that the object of the
express grant of powers to the Governor-General, or the
Governor-General in Council, as distinguished from the
general grant to the Queen, was to indicate that the power
was exerciseable by the authority designated alone.

The position of the Governor of a Colony as Commander-
in-Chief of the Forces is one as to which there has been
naturally much misconception. In England the king gave
up the personal command of the army upon the establish-
ment of the office of General Commanding in Chief in 1793.
In the colonies, however, the civil and military government
have nominally remained in the hands of one person. For
this there are several reasons. In the first place — and this
is true of several of the Australian Colonies — the military
command has often preceded the civil government, and it
was but gradually that the government passed out of the
military to the civil state. In the second place, even in
colonies which have reached an advanced stage of self-
government in civil matters, defence has been regarded as
in the main an Imperial affair; and notwithstanding the
general withdrawal of the Imperial forces from the self-
governing colonies, the local forces which have been raised
and maintained by the colonies have generally been under
the immediate direction of Imperial officers, who for many
causes, social as well as military, were disposed to regard
themselves as outside the scope of the local government of

222 THE EXECUTIVE POWER.

the colony. Even Chief-Justice Higinbotham, above all
others the champion of independence in local affairs, treated
the control of Her Majesty's militarj^ and naval forces as a
matter in which the Governor was bound to obey instruc-
tions given to him by the Crown directly or through the
Secretary of State. In all these circumstances it was
natural that there should be not a little friction. The
Governor's own position is defined by the Colonial Office
Regulations.^ Though bearing the title of Captain-General
or Commander-in-Chief, he is not, without special appoint-
ment from Her Majesty, invested with the command of Her
Majesty's Regular Forces in the Colony, and in the event of
the Colony being invaded, the officer in command of Her
Majesty's land forces assumes entire military command over
the forces. Most of the difficulties that have arisen are
described by Mr. Todd in Parliamentary Government in
the Colonies, chapter xii. " Imperial Dominion exerciseable
over self-governing colonies: in naval and military matters." '^
The most important of these questions has been as to the
right of communication on military affairs between the
Governor and the officers commanding the forces without
the intervention of the colonial minister of defence. The
principle is now generally recognized that the forces locally
raised and maintained are, in the words of Sir Henry
Parkes, as much subject to the responsible government of
the colony as any other branch of the public service. The
provision of section 68 of the Commonwealth Constitution
vesting the command in chief of the Naval and Military
Forces of the Commonwealth in the Governor-General as
the Queen's representative is intended to carry out these
principles, and in no way points to the exercise of indepen-
dent powers.^ The whole military and naval organization
of the Commonwealth is a matter to be undertaken by the

^Chapter ii., sec. ii. -See also chapter iv., p. 135.

^The first General Order of the Commander-in-Chief in the Common-
wealth was issued in connection with the inauguration of the Common-
wealth, and was addressed to the Minister of State for Defence, directing
him to inform the Major-General commanding the forces, etc.

PO WERS. 223

Ministry, which is responsible therefor to the Parliament.
In this organization there must be some division of functions
between military and civil officers ; and if a reasonable
standard of efficiency is to be maintained, appointments,
promotions, dismissals, and discipline must be treated as
non-politipal matters. But this organization is subordinate
to the cardinal principle of ministerial responsibility ; and
the question of the limits within which Parliamentary
control is legitimate in matters of administration is not
peculiar to the subject of defence, or to the affairs of the
colonies.!

It should be noted that the Letters Patent and the Com-
mission of the Governor-General go somewhat beyond the
Constitution. The latter deals only with the command of
the naval and military forces of the Commonwealth ; the
former contain no such qualification, and in virtue thereof
the Governor-General is the Commander-in-Chief of all
forces, whether Imperial or Colonial, in the Commonwealth.
The relation of Imperial forces to the Colonial Government
when on active service is discussed by Mr. Todd in reference
to the difierence between Sir Bartle Frere and Mr. Molteno
in 1877.2

^ On the question of the relation of a Minister to Parliament in respect
to the army, reference may be made to Anson, Law and Custom of the
Constitution, vol. ii., p. 369.

2Todd, pp. 380-388.

CHAPTER XIII.

THE FEDERAL EXECUTIVE COUNCIL AND THE
QUEEN'S MINISTERS OF STATE.

THE CABINET SYSTEM.

In the vesting and exercise of powers, the Constitution
distinguishes between the " Governor-General " and the
" Governor-General in Council." Section 63 declares that
*• the provisions of this Constitution referring to the
Governor-General in Council shall be construed as re-
ferring to the Governor-General acting with the advice
of the Federal Executive Council," whence it might be
inferred that all the powers conferred upon the Governor-
General were intended to be exercised by him upon his own
discretion. But though the terms are not wholly unconnected
with the distinction between personal action and action on
the advice of Ministers, this is not the main character of the
distinction. Statutory powers conferred or duties imposed
upon the colonial executive have generally been exerciseable
or performable only by the Governor in Council; powers
emanating from the Crown have been exerciseable by the
Governor in some other form of law than an Act or Order in
Council. While in both cases powers have been exerciseable,
if not always on the advice of Ministers, yet always in
accordance with the doctrine of ministerial responsibility,
the co-operation of the Executive Council in a colony no
more ensures action in conformity with modem constitu-
tional practice than does the co-operation of the Privy
Council in acts of the Crown in England, for, as we shall

^ THE FEDERAL EXECUTIVE COUNCIL. 225

see, the Executive Council is in some cases formally distinct
from the Ministry. In one matter, however, the use of the
terms '' Governor-General " and " Govern or- General in
Council " adverts, as do the Constitution Acts of the
colonies, to the constitutional practice of the cabinet
system. The appointment of "officers to administer the
Departments of State," is a power conferred upon the
Governor-General (sec. 64), while the appointment of
civil servants (sec. 67) and of the justices of the Common-
wealth Courts (sec. 72) is to be made by the Governor-
General in Council. The terms used in this connexion serve
to point a contrast between the choice of Ministers, which is
an act of personal discretion without the advice of Ministers,
and the ordinary patronage of Government which is under
ministerial control.

The Federal Executive Council. — After the Governor-
General, the principal executive organ is the Federal
Executive Council. Though it is established " to advise
the Governor-General in the government of the Common-
wealth " (sec. 62), its characteristic function is action rather
than advice. There are no legal qualifications for member-
ship, but every Minister of State must be a member of the
Council (sec. 64). On the other hand, an Executive Coun-
cillor is not necessarily a Minister of State. An Executive
Councillor is not, as such, the holder of an office of profit,
and is therefore not disqualified for a seat in the Parliament.
Members of the Council " shall be chosen and summoned by
the Governor-General and sworn as Executive Councillors,"
and hold office during pleasure (sec. 62). This must be
subject to existing constitutional custom; there can be no
duty in the Governor-General to summon particular members
to the Council. There is great scope for choice in the con-
stitution of the Council. It might become, like the Privy
Council, a body composed of present and past Ministers,
great officials, and other persons who have attained eminence
in any sphere, and upon whom the membership is conferred
as an act of honour. Or, like the Executive Council in
Victoria, it might consist of present and past Cabinet

226 THE FEDERAL EXECUTIVE COUNCIL.

Ministers. Or, again, like the Executive Council of New
South Wales and the Privy Council in Canada, it might be
limited to the Ministry of the day, including in that term, of
course, the " honorary members " of the Cabinet.^

The Ministers of State. — After the Federal Executive
Council come the Queen's Ministers of State for the
Commonwealth, who are appointed by the Governor-
General "to administer such Departments of State of the
Commonwealth as the Governor- General in Council may
establish" (sec. 64). They hold office during the pleasure
of the Governor-General ; their offices are such as the
Parliament prescribes, or, in the absence of provision, as
the Governor-General directs (sec. 65). The annual sum
of £12,000 per annum is appropriated to the payment of
the salaries of the Ministers of State, but Parliament may
alter the amount.

It is in the sections relating to the Ministers of State that
the Commonwealth Constitution goes further than any
existing Colonial Constitution in establishing an organic
relation between the Ministers and Parliament. For not
merely does the Constitution, following the British and
Colonial Constitutions absolve Ministers from the general
disqualification of holders of offices of profit for a seat in
Parliament (sec. 44), but by sec. 64 it provides that " after
the first general election no Minister of State shall hold
office for a longer period than three months unless he is or
becomes a Senator or a Member of the House of Representa-
tives." The other provisions regarding the Ministers of
State, though they are made with a view to the Cabinet
System, do not preclude very extensive modifications of
that System. There is no recognition of the Cabinet, for as
pointed out the Federal Executive Council is not necessarily
identical in constitution or functions with a Cabinet. There
is no recognition of the collective responsibility of the

^ For a consideration of the relative merits of the Victorian and New
South Wales system, see correspondence between Sir A. Helps and Sir H.
Parkes, Fifty Years in the making of Australian History , Parkes, vol. i.,
p. 305.

THE MINISTERS OF STATE. 227

Ministers of State ; section 64 treats them as separate
administrative officials and there is no hint of a Prime
Minister. There is nothing to prevent the virtual establish-
ment of Ministries elected by Parliament^ which at one
time found some favour in Australia, though they cannot be
given the fixity of tenure which the instability of political
parties has recommended to many persons. All that has
been done is to establish a Parliamentary Executive ; the
rest is left as in England and the colonies generally to
custom and convention.

It has been already stated that the development of the
Executive Council is a matter of uncertainty — it may or
may not be identical in constitution with the Cabinet.
There is another point connected with the Ministry upon
I which a comparison may be made with English practice.
I In England, the Cabinet and the Ministry are not identical
I bodies, the latter includes a large number of officers " liable
j to retire upon political grounds" (to use an expression
j common in the colonies) who are able to sit in Parliament.
j In Australia there are no Ministers outside the Cabinet ;
i and the habitual inclusion of law officers in the Cabinet has
had the result of making those appointments dependent
much more on political than professional position. The
Constitution Acts designate a limited number of offices
tenable with a seat in Parliament ; and the Commonwealth
Constitution by enacting that, until the Parliament other-
wise provides the Ministers of State shall not exceed seven
in number, practically makes it certain that all the Ministers
will be in the Cabinet. The other point of difference
I between English and Australian practice is the existence
of what are sometimes called " honorary Ministers " or
" Ministers without a portfolio " in the colonies. No
Constitutional rule seems to be more firmly established in
England than that which, treating the Ministry as a body
of departmental chiefs, confines it, to adopt Addington's
description of the Cabinet, to the persons " whose re-

^ The curiously worded § 65 may be found to have sonie bearing on this
subject.

228 THE FEDERAL EXECUTIVE COUNCIL.

sponsible situations in office require their being members of
it." It is true that the rule has been broken ; that the
Duke of Wellington and Lord John Russell were both
members of the Cabinet without holding any office, but in
each case strong objections were made to the practice, not
by a political opponent, but in the one case by the Prime
Minister, Sir Robert Peel, and in the other by the Queen
herself In Australia on the other hand every cabinet
includes from one to three members who hold no office and
receive no salary. They are not to be compared with the
light administrative offices — such as the Privy Seal, the
Chancellorship of the Duchy of Lancaster, or the First Lord-
ship of the Treasury, held by important members of the
Cabinet with heavy parliamentary or party duties. They
are generally held by gentlemen of whom it may be
said without intending any disparagement that they are
politically deemed of less account for the moment than their
colleagues.^ The " honorary Ministers " or " Ministers with-
out a portfolio " are generally members of the Upper House^
and sometimes the only members of the Government in that
House, for it is not unknown that the Prime Minister finds
himself compelled to distribute all his salaried offices in the
House upon whose support the Ministry mainly depends.
The honorary or non -official member of the Cabinet may be
expected to form a regular feature in Commonwealth
Cabinets.2

There are two considerations which may mark off* a
Federal Cabinet from the Cabinets of the Colonies. The
Senate is bound to be stronger than any existing
Legislative Council, and the Ministry must accordingly be
strongly represented there. In the second place, in the
construction of Cabinets some regard must be had to the

^In some colonies, the honorary members, besides representing the
Ministry in the Upper House, often assist from time to time in the work of
departments where there is heavy pressure upon a Minister, and particu-
larly in the Department of the Prime Minister or any other in which the
Parliamentary duties are specially onerous.

2 The first Commonwealth Cabinet contained two " honorary members,"

THE QOVERNOR-GENERAL. 229

State principle. In accordance with this necessity, the
first Australian Cabinet included representatives of every
State, ^ and there was great discontent in Tasmania that
no office was given to any one from that State. Doubtless
the claim of State representation in the Cabinet will
become less powerful, but it must retain some force. These
considerations prpbably tend to produce an increase in the
size of Cabinets, since the Prime Minister will be as little
able as in an unitary government to afford to leave out
men who are individually able or influential.

It was part of the theory of responsible government held
by the late Chief Justice of Victoria and enunciated by
him in Toy v. Musgrove^ that not merely had the Governor
virtufe officii all executive power exerciseable in relation
to the internal affairs of the Colony, but that as matter
of law those powers were exerciseable only on the advice
of the colonial ministry, and that any instructions by
I the Crown through the Imperial Ministry as to the exercise
I of those powers were void and illegal. On this point as
! on the other, the majority of the Supreme Court were
j against the Chief Justice. As to the Commonwealth Con-
stitution there is no hint save in section G3 as to the
advice by which the Governor-General shall act. Advice
and instructions naturally fall in the main outside effective
legal arrangements. The Ministry cannot perform execu-
tive acts without the co-operation of the Governor-General,
and the Governor-General, as a servant of the Crown,
responsible politically not to any authority in the Com-
monwealth but to the Crown alone, will doubtless be
guided by such instructions as he may receive from the
1 Secretary of State, and there would be nothing illegal
tliough there might be something unconstitutional in the

'JVero South Wales: Mr. Barton, Sir William Lyne, and Mr. R. E.

j O'Connor (Executive Councillor without portfolio); Victoria: Sir George

Turner and Mr. Alfred Deakin; Sotith Australia : Mr. Kingston ; Qucens-

\ land : Sir J. Dickson ; Tasmania : Mr. N. E. Lewis (Executive Councillor

without portfolio) ; West Australia : Sir John Forrest.

'(1888) 14 V. L. R., 349.

230 THE FEDERAL EXECUTIVE COUNCIL.

popular sense in instructions being given as to any or
all of the powers of the Governor-General. But neither
the Instructions nor any other prerogative instrument can
limit the powers conferred by Statute, and if the Governor-
General should in the exercise of powers conferred on
him by the Constitution, designedly or inadvertently act
contrary to his Instructions this will not affect th6 validity
of his act ; the sole sanction lies in the responsibility of the
Governor-General to the Crown.

The successive steps taken upon the inauguration of
the Commonwealth are interesting as illustrating the rela-
tion of the various authorities. By virtue of the Royal
Proclamation of September 17, 1900, the federating colonies
were united in a Federal Commonwealth on January 1st,
1901 : and under section 3 of the Act the Queen had on
October 29, 1900, constituted the office of Governor-General
and Commander-in-Chief and had appointed the Earl of
Hopetoun thereto. On January 1st, 1901, the Royal
Proclamation was read at Sydney, and the Governor-
General took the prescribed oaths, and thereupon made
proclamation that he had assumed the office. The next
step was the constitution of the Federal Executive Council,
which consisted of nine gentlemen who were to form the
first Cabinet. Then the Governor-General proceeded, "with
the advice of the Federal Executive Council," to establish
the following departments of State, viz. :

The Department of External Affairs.

The Attorney General's Department.

The Department of Home Affairs.

The Department of the Treasury.

The Department of Trade and Customs.

The Department of Defence.

The Postmaster-General's Department.
Finally the Governor-General appointed seven members
of the Federal Executive Council to administer the Depart-
ments respectively allotted to them.^ In accordance with
the doctrine of ministerial responsibility, all the notifica-
^See CommmiwecUth of Australia Gazette, No. 1, January 1, 1901.

DEPARTMENTS OF STATE. 231

tions of these executive acts were signed by Mr. Edmund
Barton, the gentleman who had successfully undertaken the
task of forming a Ministry.

On the establishment of the Commonwealth the depart-
ments of Customs and Excise in each State became trans-
ferred to the Commonwealth Government (sec. 6.9). Under
Proclamations of the Governor-General, of Feb. 14th and
Feb. 20th respectively, the departments of each State for
** Posts, telegraphs, and telephones," and "Naval and
military defence," were transferred on March 1st, 1901.
Under sec. 70 the Commonwealth Government became
invested in the transfer, with all the powers and functions
of the States Governments in respect to the departments in
question. The other departments referred to in sec. 69 have
not yet (May, 1901) been transferred.

Note. — The Departments of State are in general sufficiently explained
by their titles. The Premier has however explained some of the
duties which belong to his own department — the Department of
External Affairs— and to the Department of Home Affairs. The
Minister for External Affairs will have to deal with immigra-
tion and emigration, the influx of criminals and the relations
with England, communications with the Governor-General and the
Home Government, also communications with the various States of
the Union, the Executive Council and the officers of the Parliaments ;
also the railways of the Commonwealth. Some of these duties hardly
fit in with the description " External Affairs " ; but they mark out
the office as one likely to be assumed, as in the first Ministry it has
been assumed, by the Premier. The Department for Home Affairs
includes public works, the question of the federal capital, the Inter-
State Commission, the Federal elections, public service regulation, old-
age pensions, and the acquisition and construction of railways where
the States concerned have given their consent.^

1 Speech of the Prime Minister at Maitland on January 17th, 1901. See
the Melbourne Age, January 18th.

CHAPTER XIV.

THE JUDICATURE.

The objects of the national judiciary in the Constitution of
the United States — objects of paramount importance and
fundamental to free government — are stated by Story to be,
first a due execution of the powers of government, and
secondly, a uniformity in the interpretation and operation of
those powers and of the laws enacted in pursuance of them;
and to the attainment of these ends, the national judiciary
ought to possess powers co-extensive with those of the
legislative department, and must be so organized as to carry
into complete effect all the purposes of its establisment.^

These objects are efiected in the Commonwealth Constitu-
tion.

Judicial power is an essential element in government and
the administration of law ; and in a composite government
with its inevitable conflicts, there must be some provision
which shall ensure finality both in enforcement and interpreta-
tion of the law. This practically implies a central j udicature
which shall be supreme, for the Courts of the States, what-
ever their learning, wisdom, and good faith, however free
from all imputation of bias, must nevertheless frequently
diff*er so as to make uniformity impossible, while the mere
co-ordination of a federal and state judiciary would simply
add to the confusion of authority. In Canada, though the
Provinces constitute, organize and maintain the Provincial

^ Story, ConHtitution of the United States, sections 1576-7.

i

STATUS OF COMMONWEALTH JUDICIARY. 233

Courts, the Dominion Government appoints, pays and if
necessary removes the Judges of the Courts in the Provinces
and has established over all a Supreme Court with appellate
jurisdiction, and various other Courts for the better adminis-
tration of the Laws of Canada (British North- America Act,
1867, sec. 101). It must be remembered, too, that the
Dominion control over .Provincial legislation, and the grant
of exclusive powers to each were devised with a view to
minimising occasions of conflict. In the Commonwealth, as
in the United States, consistently with the principle of State
autonomy, the States continue to control their judiciary, and
hence it is essential that the Commonwealth powers should
be enforced and guarded by an independent judiciary. On
the other hand, if the States are to be secure against the
intrusion of the Commonwealth organs, it is equally clear
that the Commonwealth Judiciary should not be readily
subject to the pressure or control of the Commonwealth
Legislature or Executive.

The Commonwealth Judiciary is not the mere auxiliary
of the Parliament and the Executive Government ; it has,
like them, an independent duty, but only within its own
sphere of judicial power, to uphold and maintain the
Constitution against all attack, whether from the Com-
monwealth Executive or Legislature or the State
Governments. If we ask, whence comes this duty of
the Courts to determine whether the Commonwealth or
the State Parliament has exceeded its powers, we shall
hardly find an answer in the Constitution itself. Nor
shall we find the explanation in the essential nature of
the federal principle, or of the " written constitution."
In Germany the relation of the Courts to Imperial and
State legislation is a matter of dispute ; but there is
every authority for saying that the Legislature must be
the interpreter of its own powers, as it is in France and
Belgium where the Constitution aflfects to bind the Legis-
lature. Conformity to the Constitution in Switzerland is
obtained by a method in entire harmony with the political
ideas of that country : federal laws are not subject to

234 THE JUDICATURE.

review in the Courts, but may be challenged by 30,000
citizens or eight Cantons. Cantonal laws, on the other
hand, are subject to review in the Federal Courts; but,
consistently with the doctrine of the independence of the
Legislature in its own sphere, their validity cannot be
questioned in the Courts of the Cantons. The system
under which the valid exercise of legislative power is
treated as a judicial question belongs to the history of
the relation of courts of law to public power. In the
reign of James the First the Courts succeeded in making
good their claim to entertain legal causes, though they
involved the prerogatives of the Crown, whether in the
nature of property or executive power. Thus they
effectually prevented the establishment of any practical
distinction in the administration of public and private
law ; and if, on the one hand, questions of power are
treated judicially in suits between individuals, it is not
to be forgotten that all justice is with us " public justice,"
and that the term " private justice " is not known amongst
us. If executive power was thus a subordinate power
subject to judicial review, it was by no means clear that
legislative power was not subject to the same control,
and there were dark hints of Acts of Parliameut which
had been declared invalid, or at any rate might be so
declared. The supremacy of Parliament, however, became
unmistakeably established. But there were other legisla-
tures as clearly subordinate. The American Colonies held
charters of government from the Crown; and were con-
stantly reminded that they must keep within the terms
of the grant. Control by forfeiture of charter, by Act of
Parliament, by judicial proceedings, and an ultimate appeal
to the Privy Council, whose action might be referred now
to one, now to another of its high functions — these were
the constitutional checks with which the colonies were
familiar. A subordinate legislature being within the
experience of all, the Revolution, though it removed
some of the external checks, established a form of
government which emphasized the subordinate character.

STATUS OF COMMONWEALTH JUDICIARY. 235

It was not readily assumed in the Federal Constitution,
that the judicial power in the Courts would be all-sufficient
to deal with the possibilities of conflict. In the Phila-
delphia convention it was successively proposed that the
general government should have a negative on all the
legislation of the States — the power which eighty years
later was given to the general government in Canada ;
that the Governors of the States should be appointed by
the United States, and should have a negative on State
legislation — a condition also established in Canada; that
a Privy Council to the President should be appointed,
composed in part of the judges; and that the President
and the two Houses of Congress might obtain opinions
from the Supreme Court. But these expedients were
discarded ; the Constitution and the laws of Congress
were declared the supreme law of the land and binding
on the judges of the several States. It was not without
some hesitation on the part of the Courts, and some
resistance on the part of the Legislatures, that the further
steps were taken by the Courts of holding, in the case
of both the States Constitutions and the Federal Constitu-
tion, that the Courts must, as a matter of judicial duty,
hold invalid laws which were inconsistent with the dis-
tribution of powers within the respective governments.

It is interesting to observe how questions similar to those
which agitated the framers of the United States Constitution
were dealt with by the Australian Convention. In the early
history of the Australian colonies, the Legislature and the
Supreme Court were brought into curiously close relation
by the part which was assigned to the Chief Justice in the
Legislative Council of the Governor of New South Wales by
4 Geo. IV., c. 96, sec. 29 ; and by the compulsory submission
of all Acts of the Legislative Councils to the Supreme Court
for the consideration of their validity under 9 Geo. IV., c. 83,
sec. 22. But these examples did not influence the delibera-
tions of the Convention. The members of the Convention
were, however, thoroughly acquainted with the prevalence
and the nature of judicial control as developed in the United

236 THE JUDICATURE.

States, a control experienced in some small degree by the
colonies themselves, notably in the early days of responsible
government in South Australia. The tendency was, in fact,
rather to exaggerate than to underrate the controlling power
of the courts. In general, the power was regarded with
singularly little jealousy or suspicion, a phenomenon entirely
in accord with the tendency of the day to subnait to judicial
authority problems which are more economical or political
than legal. Two substantive proposals were submitted as
to unconstitutional laws. In the first place, it was moved
that when any law passed by the Commonwealth Parlia-
ment was declared ultra vires by any decision of the High
Court of Australia, the Executive might, upon the adoption
of a resolution by absolute majorities in both Houses, or, as
was suggested, in one House alone, refer the law to the
electors for their approval. The other proposal was of a
more sweeping kind. It was to the effect that the plea that
a law of the Commonwealth or of a State was ultra vires
should not be raised in any Court, except, in the case of a
Commonwealth law, by or on behalf of any State, or, in the
case of a State law, by or on behalf of the Commonwealth,
but without prejudice to the power of the Courts in any
litigation to deal with conflicts of Commonwealth and State
law. The proposal received no support, and the maintenance
of the individual right to impugn laws is the more significant
because in other respects the Constitution, differs markedly
from the Constitution of the United States in not establish-
ing rights of individuals against governmental interference.
The duty of passing upon the validity of Acts, whether
of the Commonwealth or of the State Parliament, exists
purely as an incident of judicial power. It belongs not to
any one Court, or any system of Courts, but to all Courts
within the Commonwealth whatever their degree, whenever
in a matter in litigation before them some Act of the one
Legislature or of the other is invoked. It is the duty of every
Court to administer the law, of which the Constitution is a
part, and a superior part. " The judges of the United States
control the action of the Constitution, but they perform

CHARACTER OF JUDICIAL PROCESS. 237

purely judicial functions, since they never decide anything
but the cases before them. It is natural to say that the
Supreme Court pronounces Acts of Congress invalid, but in
fact this is not so. The Court never directly pronounces
any opinion whatever upon an Act of Congress. What the
Court does do is simply to determine that in a given case
A is or is not entitled to recover judgment against X ; but
in determining that case the Court may decide that an Act
of Congress is not to be taken into account, since it is an
act beyond the constitutional powers of Congress." ^ No
principle is better established than that the Courts will not
consider the validity of a Legislative Act except at the
instance of one whose rights are touched by such Act ^ ; and
the case must be one in which the Courts can aflford relief.
Many of the provisions in the Constitution of the Common-
wealth, as in the Constitution of the United States, are
outside the scope of judicial sanctions. In a dependent
community such " political " matters are fewer than in an
independent political society ; but reference has been made
to several examples in the course of this work.

It is possible of course that the principle object of a suit
may be to obtain a judgment upon the constitutionality of
a Statute. The immediate matter in dispute may be
trifling in amount ; but the suit is a "test case." That is
no ground upon which the Court can refuse jurisdiction.
But it must be a real and not a fictitious suit ; the Courts
will not permit issues on feigned facts. Between these
cases lies the " friendly " or " collusive " action, i.e. one in
which are present all the facts which ordinarily give
jurisdiction to the Courts and raise an issue, but the suit
is a " friendly " one, and there is a substantial identity of
interest of the parties, or the acts which give rise to the
action have been done for the purpose of creating an issue to

1 Dicey, Law of the Constitution, p. 155. It is perhaps going too far to
say that the Court never directly expresses any opinion upon an Act of
Congress.

'^ This is well illustrated by the recent case of Tyler v. Judges of the Court
of Registration (Mass.), 21 Suprenne Court Reports 206, noted in Harvard
Law Review, vol. 14 (1901), pp. 529, 542.

238 THE JUDICATURE.

be tried. Such a course is not uncommon ; in England and
the colonies some of the most important constitutional
questions have been determined in collusive actions. It
is obvious that as authorities such cases may rightly be
regarded with suspicion, but the Supreme Court of the
United States has gone the length of declaring that the
Courts will not in such a cause consider the validity of a
Statute. In 1891, in the Chicago and Grand Trunk
Railway Company v. Wellman} the Court said : " The
theory upon which apparently this suit is brought is that
the parties have an appeal from the legislature to the
Courts; and that the latter are given an immediate and
general supervision of the constitutionality of the former.
Such is not true. Whenever, in pursuance of an honest
and actual antagonistic assertion of rights by one individual
against another, there is presented a question involving the
validity of any Act of any legislature, State or Federal, and
the decision necessarily rests on the competency of the
legislature to so enact, the Court must, in the exercise of
its solemn duties, determine whether the Act be con-
stitutional or not; but such an exercise of power is the
ultimate and supreme function of courts. It is legitimate
only in the last resort and as a necessity in the deter-
mination of real, earnest, and vital controversy between
the individuals. It never was thought that by means of a
friendly suit a party beaten in the legislature could transfer
to the Courts an inquiry as to the constitutionality of the
legislative Act." The English practice seems more favour-
able to friendly suits, if at any rate they are brought and
conducted in good faith. In Poiuell v. Kenipton Park
Racecourse Company,^ the suit was avowedly a friendly
suit, the purpose of which was to obtain a decision of the
highest judicial tribunal as to the construction of an Act of
Parliament. It is true that to ask the Court to construe an
Act of Parliament is not quite the same thing as to ask the
Courts to declare that a State Statute is invalid, but each
is the judicial determination of a question of law in a
1 143 U.S. 339. 2 [^1899] ^.C. 143.

DEFECTS OF JUDICIAL PROCESS. 239

matter where the parties have rights. Lord Halsbury said
(p. 157), "I think it is right to say that in my view it is
absolutely immaterial what motive has induced the plantiff
to bring this action. Once it is brought, the Court before
whom it comes must decide according to law, and the
construction of an Act of Parliament is a pure question of
law, and must be decided according to its legal construction
whatever may be the motives and wishes of the respective
litigants." And Lord James of Hereford said (p. 190),
" It seems clear that the action was brought in good faith
for the purpose of obtaining an authoritative and final
judgment. Probably the plantiff will regard with satis-
faction his want of success in the action. But the judgment
whatever it may be will and must be acted upon. This
therefore is not a case where the judgment of a judical
tribunal is sought for the purpose of determining a right for
mere abstract purposes."

The consideration of constitutional questions purely as
an incident of judicial power has one great advantage ;
"The judicial control" — Mr. Bryce objects to the expression
altogether — is exerted with the least possible amount of
friction. But it has two considerable effects. The practical
importance of a decision of the Courts lies in its authority
as precedent ; and it may well be for the public interest
that a cause involving great constitutional questions
should not be left wholly in the hands of the parties. The
parties may not be able to command the best legal
assistance, or they may be content with the decision of a
Court which is not the court of ultimate a]:)peal. These
inconveniences may of course be mitigated by the public
authority concerned taking up and carrying on the case,^

^ As in A.G. for Ontario v. Mercer (1883), A.C. 767, where the contest
was virtually as to whether certain prerogative rights in land belonged to
the Crown in right of Ontario or of the Dominion of Canada. The de-
fendant was content with the judgment of the court of first instance, but
the Dominion of Canada appealed in the name of the defendant, and was
heard in the Supreme Court and in the Judicial Committee. The latter
treated the public character of the case as reason for making no order as
to costs. And see Todd, Parliamentary Government in the Colonies, p. 541.

240 THE JUDICATURE.

or by the intervention of such authority as an interested
third party where the circumstances admit it. In the case
of Bt Catharines Milling and Lumber Company v. Reg ^
(on the information of the A.G. for Ontario), the claim of
Ontario in respect to certain lands was resisted on the
ground that they were the property of the Dominion ; and
in granting leave to appeal, the Judicial Committee pro-
vided that, as the case raised large questions of right
between the Province and the Dominion, the Dominion
should be at liberty to intervene.

The other defect of the system belongs to the accidental
character of litigation, ^ an inconvenience which belongs to
all judiciary law. In England the authority of Parliament
is now available to settle disputed questions of law. But
this was not always the case; Parliament was normally
divided rather than united, and Parliamentary action
requires unity. The great importance of judicial determina-
tions in the seventeenth century lay in the fact that as the
disputes concerned the powers of the constituent parts of
Parliament, itself, these parts could not co-operate to settle
or change the law. The opinion of the judges, whether
judicially or extra-judicially expressed, was a powerful
weapon, which the king was eager to turn to his own
advantage. He was not disposed to wait nor did law or
custom then require him to wait, until litigation should
arise. In a Federal Constitution, the circumstances are
somewhat analogous. The Constitution is in no case readily
alterable ; it is quite likely that the very nature of the
dispute precludes the necessar}?^ co-operation of powers. In
any case there may be many uncertainties which may
embarrass the Government and paralyse its action. The
Government desires to know not whether they have done
right, but whether they may do this or that thing. Very

M1888) 14 A. C. 416.

2 See Bryce, T?ie American Commomvealth, Pt. i. cap. xxiv. Everyone
who wishes to understand the matters here referred to should read Mr.
Bryce's account of the Relation of the Courts to the Constitution in the
United States.

DEFECTS OF JUDICIAL PROCESS. 241

early in the history of the United States Constitution, the
judges of the Supreme Court had to decide upon their
attitude towards questions of law addressed to them by the
Executive. In 1793, Washington sought the opinion of the
judges of the Supreme Court as to various questions arising
under treaties with France, but after some delay the judges,
" considering themselves merely as a legal tribunal for the
decision of controversies brought before them in a legal form,
deemed it improper to enter the field of politics by declaring
their opinion on questions not growing out of the case before
them."^ In several of the States of the Union, the
Constitutions have provided that the judges shall give
opinions when called on by the Executive or the Legisla-
ture. Such opinions are never regarded by the judges
themselves as authoritative, and may be departed from by
the Courts even when constituted by the judges who have
given the opinion ; they are given under an obvious dis-
advantage, since the judges have not the assistance of the
arguments of counsel. In Canada, by the Supreme Court
Act, 1875 (R.S.C., c. 135), extended by 54 & 55 Vict. c. 25.
the Governor-General in Council may refer to the Supreme
Court various specified matters including questions touching
Provincial legislation and the constitutionality of any
legislation of the Parliament of Canada, and generally any
other matter with reference to which the Executive sees fit
to exercise this power; and in certain limited cases, the
Senate or House of Commons may seek the assistance of the
Court. These references are modelled closely upon the form
of judicial proceedings. It is the duty of the Court to hear
and consider the matter referred to it; parties interested,
whether Provincial Governments, associations, or individuals,
are cited, and are represented by counsel, and the finding of
the Court is practically a declaratory judgment, on which an
appeal may be taken to the Queen in Council. The power
may be compared both with the power of the House of
Lords to consult the judges, and the power of the Crown
under 3 & 4 Will. iv. c. 41 sec. 4 to refer to the Judicial

^Marshall's Life of Washington, vol. v. 441.
Q

242 THE JUDICATURE.

Committee for hearing or consideration any such matters
whatsoever as the Crown shall think fit. The power has
been very freely exercised, and most of the important
constitutional questions which have come from Canada to
the Privy Council during recent years have been submitted
under it.

The inconvenience of determining certain matters as
abstract questions has been referred to,^ but the Court
is able to guard itself, and the power of reference seems
to have been exercised with advantage. It may be noted
that the proposal submitted to but rejected by the Aus-
tralian Convention for prohibiting any challenge of a
Statute as ultra vires save on behalf of the Commonwealth
or a State, assumed that a substantive proceeding might
be taken in the Court by the Attorney General of the
one or the other for the determination of the validity of
such a Statute. In Canada, as in other Colonies, the
Judiciary is organised under the Parliament, which fully
determines its functions. In the Commonwealth, as in the
United States, it is judicial power which is vested in
in the Courts, and it is clear that the advisory function
is not included in that power, even when the Court may
hear evidence and arguments to aid it in giving advice.
By the Local Government Act, 1888, sec. 39, any question
arising or about to arise as to whether any business, power,
duty or liability passes to a County Council under the Act,
may, without prejudice to any other mode of trying it,
on the application of certain persons be submitted for
decision to the High Court of Justice ; and the Court after
hearing such parties and taking such evidence (if any) as
it thinks just, shall decide the question. In ex parte the
County Council of Kent v. Council of Dover,^ the Court
of Appeal held that such an application was purely con-
sultative and not judicial, that it " could only be decided
in the sense of expressing the opinion of the Court how
it ought to be decided," when the question should arise

^A.G. for Dominion v. A.O./or Ontario [1898], A.C. 700, at p. 713.
2 [1891] 1 Q.B. 725.

THE JUDICIAL SYSTEM. 243

in an actual determination of an existing dispute in which
a private right was involved.

It has been pointed out that the organization of the
judicial system of the Commonwealth must be such as
to enable it to fulfil its functions. It must be able to
assume cognizance of causes competently brought before it
where the Constitution and the respective powers of the
Commonwealth Government and the States are concerned.
It must be protected against interference by the other parts
of the Commonwealth Government. Before considering the
organization of the judicial system, it is necessary to point
to two other phases of the judicial power of the Com-
monwealth. Not merely is it a guardian and interpreter
of the Constitution, which if not supreme is at all events
superior to the like power in the States ; but certain
matters, by reason of the cause or the parties being deemed
of especial concern to the Commonwealth as a whole, are
assigned specifically to it ; and finally it embraces, subject
to limitations to be considered, the supreme appellate
jurisdiction over all Courts within the Commonwealth.

THE JUDICIAL SYSTEM.

Section 71. — The judicial power of the Commonwealth
shall be vested in a Federal Supreme Court to be called
the High Court of Australia, and in such other Federal
Courts as the Parliament creates, and in such other
courts as it invests with federal jurisdiction. The High
Court shall consist of a a Chief Justice and so many
other justices, not less than two, as the Parliament
prescribes.

Thus the Constitution establishes and provides for the
constitution of but one court. This Court cannot be
abolished, nor can the jurisdiction, which it will be seen
is assigned to it, be taken away except by an amendment
of the Constitution. As to other federal courts, their
establishment, their continuance, and their share of the
judicial power of the Commonwealth are in the power

244 THE JUDICATURE.

of the Parliament. The power to invest the State Courts
with federal jurisdiction is important and convenient; it
avoids a multiplicity of tribunals, and the heavy cost
of a large judicial establishment ; and it is entirely justified
by the high reputation for integrity and ability enjoyed
by Australian Courts.

The extent of judicial power is nowhere expressly defined
as it is in the Constitution of the United States. It
consists of a general appellate jurisdiction (sec 73) and
a jurisdiction over the matters specified in sections
75 and 76, which is partly vested in the High Court
and for the rest to be defined by the Parliament under
section 77.

CHAPTER XV.

THE APPELLATE JURISDICTION : THE CROWN IN

COUNCIL AND THE HIGH COURT OF

AUSTRALIA.

The vexation of appeals to the Privy Council is an old
colonial grievance, of which traces may be found even in the
seventeenth century ; and in the early history of the federal
movement in Australia there were few matters which were
more frequently appealed to as demonstrating the need for
union than the hardships and inconvenience of " a distant
and expensive system of appeal." The delay and the cost
of a proceeding in the Privy Council, and the occasional
weakness of the Judicial Committee, amounted to a real
grievance; submission to an external Court was a senti-
mental grievance which counted for much in countries
proud of their new-won powers of self-government. But
time has worked changes ; and if in the later history of
federation the establishment of a general appellate court
has been assumed, the desire for such a court has hardly
been an effective force. Cable communication and a regular
and rapid steam service have diminished delays ; from one
cause or another the cost of litigation in England is not
greater than in Australia ; the Judicial Committee has been
made a sufficiently strong Court to command the confidence
of everyone, and the sentimental grievance has been met,
under Lord Rosebery's Act of 1895, by the admission of
colonial judges to the Board. Other causes have been at

246 THE APPELLATE JURISDICTION.

work to modify opinion. The enormous investments of
English money in the colonies, and the importance of
Australian credit at a time when several of the colonies are
suffering a recovery from financial disaster, have made the
commercial interests favourable to a tribunal submission to
which may be regarded in England as a pledge of good
faith. Some importance is attached among the same classes
as well as in the legal profession to the maintenance of
uniformity of law throughout the Empire. A few years ago
the project of a code of commercial law for the Empire was
approved by the Congress of Chambers of Commerce for the
Empire, and recommended to the consideration of the
colonies by the Secretary of State. The scheme may or
may not prove to be practicable, but it was evident that
the break with English judges would be a step backwards.
The public in general has too thoroughly acquired a habit of
cynical indifference towards litigation to be greatly in-
terested in the question as one of efficient administration
of justice ; but the discussion was caught in the tide of
loyalty which swept over the country, and a strong public
opinion declared against any severance of Imperial ties.
The result, therefore, was compromise. The long expected
general court of appeal was established ; and the appellate
jurisdiction of the Privy Council is retained under con-
ditions which, whatever their demerits, respect local and
Imperial sentiment, and in the main preserve the royal
prerogative without creating the evil of a multiplicity of
appeals. The scheme is contained in section 73 (Appellate
Jurisdiction of the High Court) and section 74 (Appeals to
the Queen in Council).

Section 73. The High Court shall have jurisdiction with
such exceptions and subject to such regulations as the
Parliament prescribes to hear and determine appeals from
all judgments, decrees, orders, and sentences.

(i.) Of any Justice or Justices exercising the original
jurisdiction of the High Court.

(ii.) Of any other federal court or court exercising federal
jurisdiction ; or of the Supreme Court of any State, or of

THE APPELLATE JURISDICTION. 247

any other Court of any State from which at the time of the
establishment of the Commonwealth an appeal lies to the
Queen in Council.

(iii.) Of the Inter-State Commission, but as to questions
of law only.

And the judgment of the High Court in all such cases
shall be final and conclusive.

But no exception or regulation prescribed by the Par-
liament shall prevent the High Court from hearing and
determining any appeal from the Supreme Court of a State
in any matter in which at the establishment of the Common-
wealth an appeal lies from such Supreme Court to the
Queen in Council.

Until the Parliament otherwise provides, the conditions
of and restrictions on appeals to the Queen in Council from
the Supreme Courts of the several States shall be applicable
to appeals from them to the High Court.

Section 74. No appeal shall be permitted to the Queen in
Council from a decision of the High Court upon any
question, howsoever arising, as to the limits inter se of the
constitutional powers of the Commonwealth and those of
any State or States, or as to the limits inter se of the con-
stitutional powers of any two or more States, unless the
High Court shall certify that the question is one which
ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any
special reason the certificate should be granted, and there-
upon an appeal shall lie to her Majesty in Council on the
question without further leave.

Except as provided in this section, this Constitution shall
not impair any right which the Queen may be pleased to
exercise in virtue of Her Royal prerogative to grant special
leave to appeal from the High Court to Her Majesty in
Council, The Parliament may make laws limiting the
matters in which such leave may be asked, but proposed
laws containing any such limitation shall be reserved by the
Governor-General for Her Majesty's pleasure, (vide section
60.)

248 THE APPELLATE JURISDICTION.

On these sections the following observations may be
made :

1. Section 73 shows the High Court in its two capacities
— first, the Supreme court of federal jurisdiction in the
Commonwealth ; secondly, the general court of appeal in
the Commonwealth. In the first capacity, it may be com-
pared with the Supreme Court of the United States ; in the
second, with the Supreme Court of Canada.

2. Section 73 not merely confers jurisdiction on the High
Court where there is a right of appeal, but grants a right of
appeal to the litigant, for the jurisdiction is to hear appeals
from a^^ judgments, etc. But it is subject to restriction by
the Parliament, and in the case of appeals from the State
Courts is limited by the section itself.

3. There is no appeal as of right to the Queen in Council
from any judgment of the High Court in its appellate juris-
diction. The words used in sec. 73 — " final and conclusive "
— are the words used of the Canadian Supreme Court, and
have been assumed by the Judicial Committee to mean that
the right to appeal to the Queen in Council is not con-
tinued in cases where an unsuccessful litigant in a provincial
court has resorted to the Supreme Court of Canada.^

4. The declaration of sec. 73 that the judgment of the
High Court shall be final and conclusive, would not impair
the prerogative of the Queen to entertain such appeals in
Council as a matter of grace, whether there were express
words saving the prerogative or not.^ The last paragraph
of section 74 does contain words saving the prerogative to
grant special leave of appeal from the High Court to the
Queen in Council, but the terms of that section affect the
prerogative in to ways: (1.) The words introducing the
saving clause — ** Except as provided in this Constitution " —
make it evident that the first part of section 74 is intended
to exclude the prerogative and that no leave to appeal in
the class of cases there referred to is to be given except by
the High Court. (2.) The Parliament may make laws in

^ See Johnston v. St. Andrew's Church, 3 App. Cas. 159.
2 Citshing v. Dupuy, 5 App. Cas. 509.

LEAVE TO APPEAL. 249

eflfect limiting the prerogative of the Queen to grant special
leave to appeal from the High Court to Her Majesty in
Council. There has been and is some doubt whether a
colonial legislature in the exercise of its general powers, may
not merely deprive the litigant of his right to appeal to the
Queen in Council (which is admitted to be within its
powers), but can also prevent him from asking and the
Crown from granting special leave to appeal as a matter of
grace.^ In the Commonwealth, the Parliament receives an
express grant of this power in the case of judgments of the
High Court.

5. The circumstances in which the Judicial Committee
will advise the Crown to grant special leave to appeal are
very rare ; it is part of the declared policy of the Board to
discourage such applications, and it has been laid down that
leave will be refused "save where the case is of gravity,
involving matter of public interest, or some important
question of law, or affecting property of considerable amount,
or where the case is otherwise of some public importance or
of a very substantial character." ^ In the case of appeals from
the High Court this is narrowed by the fact that the cases
expressly withdrawn by section 74 from the prerogative
power are typical cases in which, but for the withdrawal,
special leave would be given by the Queen in Council.

6. The power of the High Court to grant a certificate to
appeal in the cases withdrawn from the prerogative power,
is established by the Constitution, and cannot be taken
away or affected by the Parliament. It differs from the
" leave of the Supreme Court " which under the Orders in
Council is one of the conditions of " the appeal as of right "
from colonial courts, since the High Court is to certify only
^' if satisfied that for any special reason the certificate should
be granted." The " special reasons " which will satisfy the
High Court must, of course, to a great extent, be a matter of
conjecture. A typical special reason might be found in the
case provided for in the Draft Bill — questions which involve

^ See Gushing v. Dupuy (1880), 5 App. Gas. 409, 416.
^Prince v. Oagnon (1883), 8 App. Gas. 102.

860 THE APPELLATE JURISDICTION.

the public intersts of some part of Her Majesty's Dominions,
other than the Commonwealth or a State. Probably if the
matter of litigation itself affected some other part of
the Queen's Dominions, the case would not fall within the
prohibition — it would not be "as to the limits inter se"
But many conceivable cases " as to the limits inter se " of
the constitutional powers in question might depend upon
principles of common application throughout the Empire,
and upon which it is eminently desirable that there should
be an uniform rule declared by a common authority. Again,
a case in which the High Court is divided in opinion, or in
which it disagrees with a previous decision of the Court,
may furnish a special reason for certifying for an appeal to
the Queen in Council.

7. The prohibition of appeals to the Queen in Council,
and the attendant power of the High Court to certify for
special reasons apply howsoever the questions arise — whether
in suits between private parties, or between the Common-
wealth and a State or between States ; or (if that course be
possible) in a case stated for the opinion of the High Court.

8. The prohibition and the power apply only to the
determination of the particular question of constitutional
law, not to the determination of the whole case. If a case
contains several points of law, only one of which falls
within the provision, an appeal on all of them could only be
had by leave of the High Court on the question of constitu-
tional powers, and of the Queen in Council on the other
matters. Further, if the question of constitutional powers
has not been raised and decided in the High Court, it would
appear competent to the Privy Council to consider and
determine it. Finally, the questions of constitutional
powers referred to might reach the Privy Council for con-
sideration and determination otherwise than on appeal from
a decision of the High Court, in which case of course the
Privy Council would have to decide them.

9. It is perhaps necessary to call attention to the fact
that questions " as to the limits inter se of the constitutional
powers of the Commonwealth and those of any State or

APPEALS FROM STATE COURTS. 251

States or as to the limits inter se of the constitutional
powers of any two or more States," do not exhaust possible
constitutional decisions of the High Court even in the
narrowest sense of the word " constitutional." The interpre-
tation of the Commonwealth Constitution on many points
will fall without those terms. The distribution of power
amongst the organs of the Commonwealth Government ; the
exercise of power by Commonwealth or State in excess of
their respective powers but not in derogation of the powers
of the other, are illustrations. Questions of proprietary
right such as have arisen between the Dominion and the
Provinces in Canada, and are not unlikely to arise in
Australia, are hardly questions of " constitutional powers."

10. The subject of appeals from the State Courts is
expressly dealt with only by section 73 (ii). The provision
recognises that there may be some State Courts other than
the Supreme Court from which an appeal lies to the Queen
in Council. Not to speak of the old jurisdiction formerly
exercised in some of the colonies by the Governor in Council
as a Court of Error and Appeals from the Supreme Court,^
Colonial Courts of Admiralty under 54 and 54 Vict. c. 27 are
not identical with the Supreme Courts of the Colonies
where the Act is in force ; and it is probable that the Vice-
Admiralty Courts in New South Wales and Victoria which
have not yet been brought under the Act are not included
under " courts of any State." In Victoria, the Governor-in-
Council has a statutory jurisdiction by way of appeal from
judgments of courts of marine inquiry. Although the
Queen in Council is the ordinary Court of final appeal in
colonial cases, so that the terms used in section 73 are those
which naturally suggest themselves as embracing the whole

^ E.g. in New South Wales under the Letters Patent of April 2nd, 1787,
4 Geo. IV. 0. 96 and The Charter of Justice, 1823. In South Australia, such
a Court of Appeals was established by a local Act, 7 Will. IV. No. 5, and
after an acrimonious conflict between the Supreme Court and the Cabinet,
was confirmed and strengthened by 24 & 25 Vict. No. 5. The South
Australian Court still exists but is rarely resorted to ; and under the Order
in Council of 1860 an appeal lies directly from the Supreme Court to the
Queen in Council.

252 THE APPELLATE JURISDICTION.

range of appellate jurisdiction, there is at any rate one case
in which the appeal from a colonial court lies to another
English Court — appeals from Colonial Courts of Inquiry
under 45 and 46 Vict. c. 76, sec. 6,^ lie to the Probat
Divorce and Admiralty Division of the High Court
Justice.

11. The Commonwealth Parliament may make excep-^
tions and regulations as to the power of appeal from State
Courts to the High Court, subject to the limitation that it
may not prevent the High Court from hearing and deter-
mining any appeal from the Supreme Court of a State in
any matter in which at the establishment of the Common-
wealth an appeal lies from such Supreme Court to the
Queen in Council (section 73). The State Parliament has
no power directly to define the conditions and restrictions
applicable to appeals from its Courts to the High Court.

12. The present jurisdiction of the High Court to enter-
tain appeals from the Supreme Courts of the States is
defined by the clause of section 73, under which, " until the
Parliament otherwise provides, the conditions of and restric-
tions on appeals to the Queen in Council from the Supreme
Courts of the several States shall be applicable to appeals
from them to the High Court."

13. The jurisdiction of the High Court to entertain
appeals from the State Courts does not extinguish the
right of a litigant to appeal from the highest court of
the State to the Queen in Council; the jurisdiction of
the High Court is concurrent with, not exclusive of, the
jurisdiction of the Queen in Council. The restrictive pro-
visions of section 74 apply only where the High Court is
the tribunal resorted to. The practice now well established
in regard to judgments of the Supreme Courts of the
Provinces in Canada is reproduced in the Commonwealth.
In Canada, the party aggrieved by a decision of the
Supreme Court of a Province may elect to prosecute his
appeal either to the Queen in Council or to the Supreme
Court of Canada. If both parties are aggrieved, one may

^ Merchant Shipping Act, 1894, sec. 478.

RIGHT OF APPEAL FROM STATES COURTS. 25^

appeal to the Queen in Council, the other to the Supreme
Court of Canada, and in one case this course was actually
taken.^ This may be a "solecism in jurisprudence"; it
may produce awkward relations in the particular case, and
it may produce uncertainty of the law by reason of the
conflict of authority. However, we are assured that no
difficulty has resulted from the practice.

14. The right of appeal from the States Courts to the
Queen in Council is regulated by Charters, Orders in Coun-
cil under statutory power, and local statutes.^ Over the
rights so arising, the Crown and the State legislatures have
full power — they may extinguish such rights, or they may
grant rights of appeal in excess of those at present existing.

15. The fact that the right to appeal to the Queen in
Council from the State Courts is not merged in the appeal
to the High Court, and that the Crown and the States may
regulate such appeals, suggests a question as to the meaning
of the clause referred to in 12. Are the conditions and
restrictions there referred to those existing at the establish-
ment of the Commonwealth, or those which the Crown or
the States may from time to time — the Commonwealth
Parliament not having otherwise provided — ordain ? Good
reasons may be found for either opinion, but in a case
which presents some analogy, the Judicial Committee pro-
nounced against the inclusion of prospective changes. The
legislature of New South Wales had adopted a standing
order, by which, for the regulation of matters of procedure
not expressly provided for, resort was to be had to " the
rules, forms, and usages of the Imperial Parliament." The
Judicial Committee held that in their application to the
Legislative Assembly " the words naturally signify the then
existing and known rules, forms, and usages of the House
of Commons. In the absence of words of prospect or
futurit}^, and any context indicating an intention so im-
probable as that of adopting by anticipation all future
changes in the procedure or practice of the House of

^ See Todd, Parliamentary Government in the Colonies, pp. 309, 310.
^ See Note at end of chapter.

264 THE APPELLATE JURISDICTION.

Commons," their Lordships think it would be unreasonable
so to construe the Standing Order " (i.e., as to adopt future
changes).^

16. The Commonwealth Parliament has no power to
interfere with the right of appeal to the Queen in Council
from the Courts of any State except where the matter is
one falling within the subjects enumerated in sections 75
and 76. Those are matters of federal judicial power, and
the Parliament may provide that they shall be brought into
federal jurisdiction from the Courts of the State by appeal
or otherwise.

17. Where a State Court has been invested with federal
jurisdiction and is acting in that jurisdiction, there is of
course no right of appeal to the Queen in Council. The
appeal is to the High Court alone, and is subject to regula-
tion by the Parliament.

18. If the right to appeal to the Queen in Council from
the States Courts is unaffected by the jurisdiction of the
High Court under section 73, a fortiori the prerogative of
the Crown to receive appeals in Council from such Courts
as a matter of grace is unimpaired. There is no corre-
sponding power in the High Court, and consequently for
the present the considerations which have influenced the
Judicial Committee in determining whether special leave
ought to be given to appeal from a decision of the Supreme
Court of one of the Australian Colonies will apply with
equal force to applications for leave to appeal from the
Supreme Courts of the States. Thus, the only possible
appeal from a State Court in a criminal case will be to the
Queen in Council by special leave. But the Parliament
may remove restrictions upon appeals to the High Court ;
and if it should do so, the fact that there is a right of
appeal to the High Court will probably be a reason for
refusing special leave to appeal to the Queen in Council
from a judgment of a State Court. Whether the State
Parliaments can by apt and suificient words deprive the
Crown of its prerogative to hear appeals as a matter of

1 Barton v. Taylor, 11 App. Cas. at p. 202.

PREROGATIVE OF CROWN TO RECEIVE APPEALS. 255

grace is one of the unsettled questions of constitutional law.
The Crown is a party to colonial legislation, and colonial
legislation frequently does impair the royal prerogative,
whence it might seem that the State Parliaments could
extinguish the prerogative of grace. On the other hand,
there is a distinction between prerogatives exercisable in a
colony which may well be affected by the enactments of
the colonial legislature, and raajora regalia which, though
belonging to the Crown in respect to the colonies, are not
exercised there. These may be regarded as matters of
Imperial and not local concern, to be affected only by the
legislation of the Imperial Parliament. This is probably
the better opinion.^

Note. — The tables on the following pages are the regula-
tions under which at the present time appeals from the
Australian States lie to the Queen in Council. They are
; in the main extracted from a Table prepared by Mr. Wood
I Kenton, and published in the Journal of the Society of
^Comparative Legislation, December, 1899.

^ Gushing v. Dupuy (1880), 5 App. Cas. 409, is sometimes cited as authority
! for the proposition that a colonial legislature cannot aflPect the prerogative
j to hear appeals as a matter of grace. No such proposition was affirmed
! and no opinion was expressed by the Judicial Committee on the subject ;

all that was said was "It is in their Lordships' view unnecessary to con-
; sider what powers may be possessed by the Parliament of Canada to
' interfere with the royal prerogative, since the 28th section of the Insol-
i vency Act does not profess to touch it, and they think, upon the general

principle that the rights of the Crown can only be taken away by express
' words, that the power of the Queen to allow this appeal is not affected by

that enactment. "

!

266

THE APPELLATE JURISDICTION.

O^ O 00

>.§ §a, «^ ,

* ? r1

CS OB >4 00 S-^«4-l -r-.

5 ^
o rtj a>

'C eS

]

S o ^ ■►^ "^ >
« fl . '-•-2

43 3

6o

«5 35

2 r/^ Ui

^os-ScoO (i

o S3 s

1-5 «>.

i°'ii.is|

5 -»3 <i ,:5 -M W

APPEALS TO QUEEN IN COUNCIL,

257

O fe CO

>» « a
."S-° 2

St:

Clj CD Ci
W3&

all!

CI M «8 <S
OP!
••- to tj >»

w 5

5 fl «

1^5

& S «8 P4

-^ 8-i3

.«

C8^'

« s-

lls'ii

Soi:23

d" bO o .

§•1 g-^

II

ill

>0C m

O

S5i||g

«o,

o

d O) ^H rg

■'^ is S fl

«H o

^ a ^

53 02^^

3? <u

wC^l

^T3 :
« o^

PHrH O

£2 f^ 00

CO ^^

1— I ^ r-X CC

CHAPTER XVI.

FEDERAL JURISDICTION.

In considering the federal jurisdiction of the Common-
wealth we return to the normal state of things under
the Constitution — the restriction of the powers of the
Commonwealth organ to certain enumerated subjects.
The Government of the Commonwealth is, in all its
departments, primarily a Government of limited and
enumerated powers; the general, unenumerated powers
belong to the States. Therefore, just as the first thing
to be done in interpreting an Act of the Commonwealth
Parliament is to ascertain that the subject of the Act
is one committed to the Parliament ; so, in invoking the
jurisdiction of the federal courts, it must be shown
that the cause is within the enumerated powers. In the
United States it must always appear by the record that
a case in the federal court is within its jurisdiction; the
presumption is against it until it is shown. ^

The subjects of federal jurisdiction in the Constitution
closely follow the subjects of the judicial power of the
United States, though in many respects the political con-
dition of the Australian Colonies and the character of
their courts is widely different from the state of things
which in America led to the inclusion of certain subjects
in the judicial power of the central government. In the
great case of Chisholm v. The State of Georgia,^ Mr.

^Bohertaon v. Grease, 97 U.S. 646 ; Godfrey v. Terry, 97 U.S. 171.
2(1793) 2 Dallas, 419.

SUBJECTS OF FEDERAL JURISDICTION. 259

Justice Iredell remarked, in terms which have had the
approval of Story, that "the judicial power of the United
States is of a peculiar kind. It is indeed commensurate
with the ordinary legislative and executive powers of the
general government {i.e. the Federal Government) and the
powers which concern treaties. But it also goes further.
When certain parties are concerned, although the subject
in controversy does not relate to any special objects of
«.uthority in the general government wherein the separate
sovereignties of the several states are blended in one
common mass of supremacy, yet the general government
has a judicial authority in regard to such subjects of con-
troversy ; and the legislature of the United States may
pass all laws necessary to give such judicial authority its
proper effect." The principles underlying these subjects
are stated by Kent : ^ " All the enumerated cases of federal
cognizance are those which touch the safety, peace, and
sovereignty of the nation, or which presume that State
attachments, State prejudices, State jealousies, and State
interests might sometimes obstruct or control the regular
administration of justice."

Section 75. In all matters

i. Arising under any treaty ;

ii. Affecting consuls or other representatives of other
countries ;

iii. In which the Commonwealth, or a person suing or
being Sued on behalf of the Commonwealth, is a party ;

iv. Between States, or between residents of different
States, or between a State and a resident of another State ;

V. In which a writ of mandamus or prohibition or an
injunction is sought against an oflficer of the Common-
wealth : the High Court shall have original jurisdiction.

Section 76. The Parliament may make laws conferring
original jurisdiction on the High Court in any matter

i. Arising under this Constitution, or involving its inter-
pretation ;

ii. Arising under any laws made by the Parliament ;
^Kent's Commentaries (Holmes' edition, vol. i., p. 320).

260 FEDERAL JURISDICTION.

iii. Of admiralty and maritime jurisdiction;

iv. Relating to the same subject-matter claimed under
the laws of different States.

It has been observed that section 73 not merely grants
appellate jurisdiction to the High Court, but also confers
rights of appeal. In sections 75 and 76, however, the
matter of jurisdiction alone is dealt with. The existence
of legal rights is assumed, and the sections do no more
than indicate that the rights may be enforced in a certain
tribunal or class of tribunals. The term " matter," whicli
governs the enumeration of subjects in sections 75 and 76,
is in itself so indefinite that its meaning must be gathered
almost wholly from its particular use. In the Constitution
it is used in relation to legislative, executive, and judicial
power. It is well established by usage as a comprehensive
term for describing every kind of proceedings competently
brought before and litigated in a Court of law.^ In rela-
tion to judicial power, it excludes political disputes not
arising out of legal right ; such disputes " do not present
a case appropriate for the exercise of judicial power," and
"it is only where the rights of persons or property are
involved, and where such rights can be presented under
some judicial form of proceedings, that courts of justice
can interpose relief." ^ Even the reference to the Judicial
Committee of **any such other matters whatsoever as His
Majesty shall think fit" (3 and 4 Will. IV., c. 41, sec. 4) is
in practice limited to such matters as are fit for judicial
determination, and in which the opinion may be followed
by effective action by the Crown — a limitation which is
the more significant when we remember that the Judicial
Committee has many of the marks of the Council rather
than the Courts.^

The matters of federal jurisdiction enumerated in sections
75 and 76 require particular consideration.

^Cf. "Cause or Matter," Judicature Act, 1873, sec. 100.
2 Cherokee Nation v. State of Georgia, 5 Peters 1 ; State oj Georgia v.
Stanton (1867), 6 Wall. 50.
'See Todd, 305-6, 843.

MATTERS ARISING UNDER TREATY. 261

1. Arising under any treaty. — This matter, like that
which follows it, is taken from the Constitution of the
United States, and corresponds with an article of legislative
power, "external affairs and treaties." The reference to
treaties under the head of legislative power was dropped,
but was retained under the judicial power. Treaties come
very rarely under the consideration of the Courts. In the
United States, indeed, treaties are part of the law of the land.
This, however, is not the case in the British Constitution,
save in special circumstances; even if a treaty expressly
deals with matters of private right, the most recent
authoritative declaration is that that is ''only a bargain
which can be enforced by sovereign against sovereign in
the ordinary course of diplomatic pressure." ^

The operation of many Acts of Parliament is, however,
dependent upon the conclusion of conventions between Her
Majesty and foreign powers; in such cases, questions as to
the operation of the law might fitly be described as arising
under the treaty. In some cases the treaty itself becomes
incorporated in the law, e.g. the International Copyright
Convention, 1886, and the Extradition Acts (R. v. Wilson
1878, 3 Q.B.D. 42).2

2. Affecting consuls or other representatives of other
countries. — This article may be compared with "cases
affecting ambassadors, other public ministers and consuls "
in the Constitution of the United States. The provision
extends to cases affecting such representatives in their
private capacity; but whether it extends to others than

i the representatives in Australia of such other countries,
qtiaere.

I ^ Cook V. Sprigg [1899], A.C. 572, 578. The decision in that case is some-
I what at variance with the opinion of Lord Mansfield in Campbell v. Hall
\ (1774), Cowp. 204, 20 St. Tr. 239, as to the limitation of the powers of the
I Crown in a conquered or ceded place by the terms of the capitulations.
! See as to the prerogative of treaty-making, the Parlement Beige, 1877,
4 P.D. 129 ; 5 P.D. 197 ; and Walker v. Baird [1892], A.C. 491.

^See generally on Treaties and Acts of Parliament, the judgment of Sir
Robert Phillimore in the Parlement Beige ; and Holland, Law Quarterly
Review, vol. ix. p. 136, republished in Studies in International Law, 1898.

262 FEDERAL JURISDICTION.

3. In which the Gommonwealth or a person suing or
being sued on behalf of the Commonwealth is a party. —
It must be repeated that this provision confers no right to
sue the Commonwealth. The legal personality of the
Commonwealth, as of other parts of the Queen's Dominions
is in the Crown, ^ and not the Governor-General, nor the
Executive Government ; and the Crown cannot be sued,
save by its own consent. The provisions made by the
Colonies for enabling their Courts to entertain claims
against the Crown in right of the colony would not enable
their Courts to assume jurisdiction over claims against the
Crown in right of the Commonwealth. ^ By sec. 78, the
Parliament may confer rights to proceed against the
Commonwealth, but the Crown may sue in any right in any
of its Courts which has jurisdiction of the parties and the
cause. ^ The Commonwealth, therefore, may freely sue in
the State Courts, as does the United States in the State
Courts in America. ''A person suing or being sued on
behalf of the Commonwealth" anticipates the common
practice of designating some Minister, Department, or
oflScer of Government, as the appropriate person to sue or
be sued for the Government.

4. (a) Between States or (b) between residents of different
States or (c) between a State and a resident of another
State. — All these cases belong to the class described by
Kent as presuming that " State attachments. State pre-
judices, State jealousies, and State interests might some-
times obstruct or control the regular administration of
justice." Cases between residents of different States are
of so common occurrence, and are so much in the ordinary
experience of the Courts that there seems no particular
reason for giving the High Court original jurisdiction over

^ Cf. Sloman v. Governor and Government of New Zealand., L.R., 1 C.P.D.
563.

2 See Holmes v. Reg., 10 W.R. 39 ; 31 L.J., Ch. 58 ; Frith v. Rerj. L.R.,
9 Ex. 365 ; Palimr v. Hutchinson, 1881, 6 App. Cas. 621.

'^In re Bateman's Trusts, L.R., 15 Eq. 355 ; In re Oriental Bank Corpora-
tian, exparte the Crown (1884), 28 Ch. Div. 643.

DISPUTES BETWEEN STATES AND RESIDENTS. 263

them, or even for making them matters of federal juris-
diction at all, especially as the appellate jurisdiction of the
High Court and the Queen in Council offers a sufficient
protection. The Commonwealth jurisdiction is more limited
than the United States jurisdiction ; it does not extend to
suits " between a State or the citizens thereof and foreign
states, citizens, or subjects."

Under the head of controversies "between two or more
States" and "between a State and citizens of another
State," frequent attempts have been made to induce the
Courts in America to extend the area of judicial cognizance,
and to turn matters which in the condition of independent
states are moral or political into matters of legal right.
The jurisdiction of the federal courts has sometimes been
thought to stand for all State disputes as the constitutional
substitute for war and diplomacy, and consequently to
extend to all disputes which might endanger the peace
of the Union or the cordial relations of the States. But
the Courts have declined to undertake the discussion of
mere political issues, and have in general construed their
jurisdiction as limited to cases in which, before the Revolu-
tion, jurisdiction was exercised by some Court. "The truth
is that the cognizance of suits and actions unknown to the
law was not contemplated by the Constitution when estab-
lishing the judicial power of the United States. Some
things undoubtedly were made justiciable which were not
known as such at the common law ; such, for example, as
controversies between States as to boundary lines. And
yet the case of Penn v. Baltimore^ 1 Ves. Sen., 444, shows
that some of these unusual subjects of litigation were not
unknown to the Courts even in Colonial times, and several
cases of the like character arose under the Articles of
Confederation, and were brought before the tribunal pro-
vided for that purpose in those Articles. The establishment
of this new branch of jurisdiction seems to be necessary
from the extinguishment of diplomatic relations between
the States. Of other controversies between a State and
another State or its citizens, which, on the settled principles

264 . FEDERAL JURISDICTION.

of public law, are not subjects of judicial cognizance, this
Court has often declined to take jurisdiction." ^

Thus the Supreme Court refused to entertain an applica-
tion by the State of Kentucky for the extradition of a
fugitive criminal,^ and generally "has declined to take
jurisdiction of suits between the States to compel the
performance of obligations which if the States had been
independent nations could not have been enforced judicially
but only through the political departments of their govern-
ments." When, in 1876, the State of South Carolina filed a
bill in equity to restrain the Sate of Georgia and other
persons from obstructing the free navigation of the Savan-
nah River, it was left an open question whether a State
must not aver and show that it will sustain some special
and peculiar injury such as would enable a private person
to maintain a similar action in another Court.*

In "matters between States" the question has been
whether the matter is one of a kind fit for judicial deter-
mination at all ; and the cases referred to show that gener-
ally the cause must be one already cognizable in some
court, or at least one which would be cognizable if the
defendant were a private person. This it would seem ex-
cludes from jurisdiction, not merely pure questions of policy,
but those relations of international law which from their
nature belong only to political entities, matters of power
and government, and not of right and property.

" Matters between a State and a resident of another
State" are partly defined by the answer just given, but
further questions arise in regard to them. A State is an
extensive owner of property, it makes contracts, and the

^ Hans V. Louisiana (1889), 134 U.S. 1, 15. See also Wisconsin v. Pelican
Insurance Coy., 127 U.S. 265. It may be added that the adjustment of
boundary disputes was before the Revolution one of the matters under-
taken by the King in Council.

"^ Kentucky v. Dennison, 24 How. 66.

^S. Carolina v. Georgia, 93 U.S. 4 ; Wisconsin v. Pelican Insurance Coy.,
supra. See also the very recent case of Louisiana v. Texas (1899), 176
U.S. 1.

DISPUTES BETWEEN STATES AND RESIDENTS. 265

acts of its agents may cause damage. All these are matters
which give rise to legal relations between private persons,
and those relations are enforced by the courts. But in such
matters the State is an abnormal person, and its immunities
are commonly expressed in our law by the maxim that
"the king can do no wrong." A common law remedy, tlie
petition of right, enabled the courts to do justice between
the king and his subjects, where the former was in posses-
sion of land, goods, or money of the latter who sought
restitution or damages, and of late this remedy has been
held to extend to cases of contract. It is, however, very far
from applying to all cases in law or equity which would be
justiciable if between subject and subject, nor when the case
is justiciable does it follow that the Court in determining
the liability of the Crown applies the same principles as in
cases between subject and subject. It is well settled that in
England the petition of right, whether at common law, or
as regulated by statute, does not extend to torts.^ The
Crown has in the colonies -the same immunities and is
subject to the same procedure as in England. But in
addition to the provisions of the common law, most of the
colonies have made statutory provision for proceedings
against the Crown, or some public officer or department on
its behalf.^ In varying degrees, proceedings for torts of
some kinds may be brought against the government in all
the colonies ; the constant presence of the government in
spheres which in England and America are occupied by
private enterprise, would make the maintenance of the
old doctrine in its integrity intolerable. It has indeed been
suggested that the special circumstances of the colonies and
the extended activity of the Government there might in

1 Tohin V. The Queen (1864), 16 C.B.N.S. 310.

^New South Wales, "Claims against the Government and Crown Suits
Act, 1897 " (and see Farnell v. Boioman, 12 App. Cas. 649) ; Victoria,
"Crown Remedies and Liability Act, 1890" ; Queensland, "Claims against
the Government Act, 1866"; South Australia, "Act No. 6, 1853"; Tas-
mania, "The Crown Redress Act, 1891"; Western Australia, "Crown
Suits Act, 1898."

266 FEDERAL JURISDICTION.

itself be a reason for extending the common law remedy-
to torts.^

Where there is a right to pursue claims against the State
under the State law — whether the common law or Statute —
such claims will be cognizable by the High Court under sec.
75 whenever they are made by a resident in another State.
This will be equally the case whether the proceeding is
against the Crown, or against some nominal defendant
appointed to represent the Crown or the colonial govern-
ment. But in this respect, as in others, the jurisdiction
given by section 75 is dependent on the existence of a right
— it does no more than enable the High Court to adjudicate
upon claims which are cognizable in the courts of the colony,
or which may be converted into claims of right by some
State law. And it must be remembered that it is now well
settled that the colonial executive cannot lawfully or effectu-
ally bar the submission of claims to the Courts — that the
petitioner may go behind the colonial executive and obtain a
jiat from the Secretary of State.

The question whether the mere grant of jurisdiction in
"controversies between a State and citizens of another
State" deprived a State of its immunity from suit save with
its own consent, was determined by the Supreme Court of
the United States in 1793 in Ghisholm v. State of Georgia}
The Court held, contrary to the view that had been urged
by Hamilton in the Federalist and by John Marshall (after-
wards Chief Justice) in the Virginia Convention of 1788,
that an action did lie under the Constitution. A strong
dissenting judgment was delivered by Iredell J., who held
that as no action of the nature of that before the Court
could have been sustained against the State before the
Constitution was adopted, and as Georgia in common with
other States, had not provided by law for any compulsory
proceedings against itself, the claim could not be made in
the Supreme Court of the United States. The judgment of
the Court led immediately to the Eleventh Amendment
of the Constitution to the effect that "the judicial power of
^ Farnell v. Bowman, uhi sup. ^2 Dallas 419.

DISPUTES BETWEEN STATES AND RESIDENTS 267

the United States shall not be construed to extend to any
suit in law or equity commenced or prosecuted against one
of the United States by citizens of another State, or by
citizens or subjects of any foreign state." Later judicial
expressions have confirmed the views of Iredell J., and the
ratio decidendi of Ghisholm v. Georgia was expressly
disagreed w4th by the- Supreme Court in 1889.^

But unlike the Constitution of the United States, the
Commonwealth Constitution confers an important power on
the Legislature in respect to proceedings against State or
Commonwealth. By section 78, "The Parliament may
make laws conferring rights to proceed against the Common-
wealth or a State in respect of matters within the judicial
power."

This section was the subject of a keen debate in the
Convention at Melbourne ; ^ and there was great difference
of opinion as to the meaning of a " right to proceed." It is
obvious that the section goes far beyond the regulation of
procedure; that it implies the giving of a remedy against
the State in certain cases where the State law has provided
none. It may be conceded that it enables the Common-
wealth Parliament to make laws giving rights against the
States under matters within the legislative power. But as
has been seen, the judicial power is not merely commen-
surate with the legislative power ; it extends to causes by
reason of the parties concerned. " Within the judicial
power " are " all matters " in which the Commonwealth is a
party, " between States," and " between a State and a
resident in another State " ; and in respect of such matters
the Parliament may confer "a right to proceed." The
governing word " matters " must receive here the same
interpretation as was given to it above ; and accordingly it
would seem that the Parliament cannot give a right to
proceed against a State save in respect of controversies
"which on the settled principles of public law are subjects
of judicial cognizance." It may in the cases prescribed

^ Hans V. Louisiana, 134 U.S. 1.

2 Official Report of Debates, Melbourne, 1898, pp. 1653-1679.

268 FEDERAL JURISDICTION.

deprive a State of the benefit of the doctrine that " the King
can do no wrong " ; deprive it of its immunity from suit and
make it liable for the acts of its servants and agents
wherever an individual would be liable, e.g. for tort. But
the Parliament could hardly create entirely new causes of
liability; the words "right to proceed" are not apt to
describe substantive rights unconnected with any subsisting
liability. Thus, it is conceived that the Parliament could not
under this section provide that the State of New South Wales
should be answerable in damages to a riparian owner on the
Murray or the Darling in South Australia for waters
abstracted to his hurt by the Government of New South
Wales as a riparian owner on the upper river, and that even
though under the law of New South Wales, a riparian
owner in New South Wales might have an enforceable claim
against the Government for infringing his riparian rights.
Still less, it would seem, could the Parliament give a right
to proceed for breach of political duties by the State, as for
failure by an efficient police to protect non-residents against
mob violence.

The same principles will in general govern the right to
proceed in matters between State and State. The Parlia-
ment may get rid of the obstacle, which arises from the fact
that the Crown personifies each ; but it could not create
new rights of a substantive kind. The Courts may be
called on some day to determine whether the powers of
the riparian States over the rivers are similar to the rights
of individual riparian owners ; and it is possible that
under section 78 the Parliament might make a law that
this question — which obviously might arise in litigation
between private persons resident in New South Wales and
South Australia — might be directly raised in proceedings
between the States. But the Parliament could not, under
section 78, declare what are the respective rights of the
States in the rivers, whatever may be its power under
other parts of the Constitution.

" Matters in which the Commonwealth is a party " would
include proceedings in which the Commonwealth and a

AGAINST AN OFFICER OF THE COMMONWEALTH. 269

State are disputants. The controversies which have arisen
in Canada between the Dominion and the Provinces as to
proprietary rights in territory are typical of matters
between the Governments which are fit for judicial deter-
mination, and it is clear that the Parliament may provide
that they may be raised directly in a suit between Com-
monwealth and State, and not merely in actions between
their respective grantees, or between one Government and
the grantee of the other. ^ Again, the financial relations
between Commonwealth and States established by the
Constitution are akin to proprietary rights and contractual
obligations, and they, too, might be made the subject of
judicial determination under a "right to proceed." It may
be that section 78 goes further; and that under it the
Parliament may provide for direct litigation between
Commonwealth and State of questions as to their respec-
tive powers which are in any way capable of judicial
determination. It is true that in the United States it is
held, as already observed, that the judicial power does not
extend to the consideration of such questions, except as
incidental to matters of right. ^ But the question of the
validity of an Act of Parliament, which may arise any
day in the course of litigation, though it may be an
abstract question, is, from its nature, not purely a question
for the cognizance of the political departments.

5. In which a writ of mandamus or 'prohibition or an
injunction is sought against an officer of the Commonwealth-
— The power to command or prohibit Federal officers belongs
in the United States exclusively to the federal jurisdiction ;^
and the reasons which have denied jurisdiction to State
Courts there apply with equal force in the Commonwealth.
The United States Constitution does not expressly refer
to the matter, leaving it to the Legislature and the Courts

^Cf. St. Catherine's Milling Coy. v. Reg. (1888), 14 A.C. 416; A.G. for
Ontario v. Mercer (1883), 8 A.C. 767.

2 Cherokee Nation v. Georgia, 5 Peters 1 ; Georgia v. Stanton, 6
Wallace 50.

^ M'Cluny v. Silliman, 6 Wheaton 598.

270 FEDERAL JURISDICTION.

to work out appropriate remedies and the incidents of
judicial power; and it has not been doubted that Congress,
in distributing the judicial power, may constitute Courts
with power to issue these writs against executive officers.
The cases in which the writs will issue are well defined by
rules of common law. They will never issue to direct or
control a discretion in the officer; they are reserved for
cases in which *' a plain official duty requiring no exercise
of discretion is to be performed, and performance is refused,"
or when " a duty is threatened to be violated by some
positive official act." In either case the person claiming
the benefit of the writ must show an injury for which an
adequate compensation cannot be had in damages ; and he
must show not merely that there is an official duty in
the officer, but that the duty correlates a right in the
applicant.

The reason for the special inclusion of this provision in
the Commonwealth Constitution is the intention that the
writs shall be within the original jurisdiction of the High
Court. In the United States the Supreme Court decided in
the famous case of Marhury v. Madison (1 Cranch, 137) —
the first which declared an Act of Congress to be uncon-
stitutional^that the original jurisdiction of the Supreme
Court was limited by the Constitution to "cases affecting
ambassadors, other public ministers, and consuls, and those
in which a State shall be a party," and could not be added
to by Congress. It may be added that the provision in the
Commonwealth Constitution in no way affects the class of
cases in which the writs will issue.

6. Arising under this Constitution or involving its
interpretation.

7. Arising under any laws made by the Parliament —
Cases arising under the Constitution, says Story (sec. 1647),
are "such as arise from the powers conferred, or privileges
granted, or rights claimed, or protection secured, or prohibi-
tion contained in the instrument itself, independent of any
particular statute enactment. . . . Cases arising under the
laws of the United States are such as grow out of the

ARISING UNDER LAWS MADE BY PARLIAMENT. 271

legislation of Congress, within the scope of their consti-
tutional authority, whether they constitute the right, or
privilege, or claim, or protection, or defence of the party
in whole or in part by whom they are asserted." To be
within the purview of the clause it is not necessary that
the case should be one in which a party comes into Court
to demand something conferred upon him by the Constitu-
tion or a law made thereunder; it is sufficient that the
correct decision of the case depends upon the construction
of either.^

It has already been pointed out that generally the State
Courts have jurisdiction over the class of cases here referred
to as an incident of State power, notwithstanding that the
matter is one of Commonwealth judicial power; and this
State jurisdiction will remain even after the Parliament has
granted jurisdiction over the subjects to federal courts,
unless it has expressly or impliedly made the federal juris-
diction exclusive. Thus, in the United States, a federal
officer who has acted under the alleged authority of the
Constitution or an Act of Congress may be prosecuted or
sued in a State Court for a crime or tort, and will have
to justify his authority there. " Recovery may be had in a
State Tribunal wherever the local laws are violated in
obedience to an injurious or unconstitutional mandate from
the general {i.e. federal) Government, and there is no clause
in the Constitution or in the Acts of Congress rendering the
jurisdiction of the federal courts exclusive."^ But this is
limited by the necessity of preserving the distinct and
independent character of the Government of the United
; States. As has been seen, no Tnandamus or prohibition can
I issue to federal officers from State Courts ; and it is now
I established that "a State Court can not issue any process
I tending to suspend the execution of an Act of Congress or
j take goods or persons that have been seized by a federal
officer under an authority from the general {i.e. the federal)

^ Story on the Constitution, sec. 1648; Cohens v. Virginia, 6 Wheaton
378 ; Tennessee v. Dams, 100 U.S. 257.
"Hare's Constitutional Law, p. 1193.

272 FEDERAL JURISDICTION. 1

Government." ^ Wherever it appears that a party is alleged
to be illegally confined within the limits of a State, and it
appears that he is confined under the authority, or claim,
and colour of the authority of the United States, the State
Court should refuse a writ of habeas corpus;^ if the deten-
tion be illegal a federal court will upon application order a
release.^

A right arising under federal law may be pursued in a
State Court unless the Parliament has indicated that it
shall be pursued in the federal court alone; and it seems
not less clear that an offence committed by breach of a
federal law may be the subject of a prosecution in a State
Court. The objection sometimes heard in the United
States that *' crimes were punishable only by the Govern-
ment against whom they were committed, and the State
Courts could not enforce the penal laws of the United
States or any government but their own," ^ is based upon a
false analogy ; the federal laws are in the territory of the
States not foreign but domestic laws, and State jurisdiction
over an ofience against the Commonwealth is in no way
inconsistent with the doctrine of the territoriality of crime.^
The provision of section 80 ^ does not appear to affect the

1 Hare's Constitutional Law, p. 1211.

^Tarble's Case (1871), 13 Wallace 397.

^ The power of the federal courts of the United States to issue a writ of
habeas corjms, arises in the main not out of the Constitution but by statute,
and the doctrines set out in the text have been established in the light of
the statutory power. The original jurisdiction of the High Court of Aus-
tralia is much more extensive than that of the Supreme Court of the
United States, and therefore its inherent power to issue the writ goes
further. But the greater number of cases in which the writ could be
sought lie outside the original jurisdiction of the High Court as defined by
the Constitution, and can only arise by statute. Until such statutory
jurisdiction is given to a federal court, it would appear that the State
Courts may issue the writ of habeas corpus in the cases referred to ; but
when jurisdiction is given, it will be exclusive in the federal court.

* U.S. V. Latkrop, 17 Johnson 4.

^See Houston v. Moore, 5 Wheaton 1, 27 ; Buckwalter v. U.S., 11
Sergeant and Rawle (Pa. ) 193.

^ " The trial on indictment of any offence against any law of the Common-
wealth shall be by jury, and every such trial shall be held in the State

ADMIRALTY AND MARITIME. 273

I matter. It is true that the Courts of the Commonwealth
will hardly execute the penal laws of the States, but they
are courts of limited jurisdiction, and such laws are not
among the matters committed to them. The power to
entertain "controversies between States and citizens of
another State " in the United States Constitution has been
held to apply only to such controversies as, before the
Union, would have been cognizable in another State, and
these did not include prosecutions by or penal actions of
a State.^

8. Of admiralty and maritime jurisdiction. — This again
follows the Constitution of the United States, as to which
Story observes that "the word 'maritime' was doubtless
added to guard against any narrow interpretation of the
preceding word ' admiralty.' " The power of the Parliament
under this provision must, it would seem, be read in
connexion with the Colonial Courts of Admiralty Act, 1 890,
so far as it is not inconsistent therewith. By that Act, the
jurisdiction is generally that of the Admiralty Division of
the High Court in England, and the Colonial Court shall
have the same regard as that Court to " international law
and the comity of nations " (section 2) : and no colonial law
shall confer any jurisdiction which is not conferred by the
Act upon a Colonial Court of Admiralty (section 3).

9. Relating to the same subject matter claimed under the
laws of different States. — This covers cases in which there
are competing claims of the class described as to ownership
or possession. It is more extensive than the provision in
the United States Constitution as to claims of land under
the grant of different States.

where the offence was committed, and if the offence was not committed
within any State the trial shall be held at such place or places as the
Parliament prescribes. "
^ Wisconsin v. Pelican Insurance Coy., 127 U.S. 265.

274 FEDERAL JURISDICTION.

THE DISTKIBUTION OF FEDERAL JURISDICTION.

By section 77, with respect to any of the matters
mentioned in sections 75 and 76, the Parliament may make
laws as follows :

i. " Defining the jurisdiction of any federal court other
than the High Court " — The assignment of jurisdiction to any
but the High Court is left entirely to the Parliament. The
original jurisdiction granted to the High Court by section
75, is not necessarily exclusive ;i whether it is exclusive
will depend upon the action of the Parliament under this
sub-section and the next. Nor does the power of the
Parliament, under section 76, to confer original jurisdiction
on the High Court in the matters therein specified, at all
limit the power of the Parliament to confer original juris-
diction exclusive or concurrent at its pleasure, upon other
federal courts. Section 76 is essentially an enabling section,
excluding the implication which might otherwise arise,
that the High Court was not to be burdened with original
jurisdiction, except in the cases provided by the Constitution
itself 2 in section 75.

ii. " Defining the extent to which the jurisdiction of any
federal court shall he exclusive of that which belongs to or
is vested in the Courts of the States." — "Any federal court"
includes of course the High Court. In most of the matters
in section 75 and 76, the State Courts as such have juris-
diction ; in such cases they may be deprived of jurisdiction
by the Commonwealth Parliament, but until deprived, it
" belongs to " them as of course, though not as of federal
jurisdiction.^ But some others — mandamus against officers
of the Commonwealth,* and suits against the Commonwealth
or another State — lie outside the ordinary judicature of the
State; and accordingly a State Court can act only when

^ Cohens v. Virginia, 6 Wheaton 274.

^Cf. Marhury v. Madison, 1 Cranch 137, declaring that Congress cannot
extend the original jurisdiction of the Supreme Court of the United States.
^Claflin V. Houseman, 93 U.S. 130.
** M'Cluny v. Silliman, 67 Wheaton 598.

V

DISTRIBUTION OF FEDERAL JURISDICTION. 275

jurisdiction is " vested in " it by the Commonwealth Parlia-
ment.

iii. "Investing any Court of a State with federal
jurisdiction!' — This power is co-extensive with the power
to establish and define the jurisdiction of federal courts.
It may be exercised both by conferring upon the State
Court jurisdiction in matters over which it has otherwise
no jurisdiction at all, and by committing to it federal
jurisdiction in those cases where it had merely State
jurisdiction.

CHAPTER XVII.

ORGANIZATION OF COURTS: JUDICIAL TENURE:

THE CONSTITUTION OF THE FEDERAL

COURTS.

By sectioD 79, the federal jurisdiction of any court may be
exercised by such number of judges as The Parliament
prescribes.

THE JUDICIAL OFFICE.

The statutory provisions, which in England secure the
independence of the judges of the superior Courts, have been
generally reproduced in the self-governing Colonies. It
may indeed be no longer necessary, that they should offer
" a barrier to the despotism of the prince " ; but the political
power, which has passed from the throne, is not less likely
to magnify itself in the hands of a Parliamentary Executive
or a legislative body. Against the abuse of sovereign
power no legal protection is possible, and, the Imperial
Parliament being supreme, the judges in England necessarily
hold office and emoluments at the will of Parliament. But
the universal acknowledgment of the sovereignty of Parlia-
ment is sufficient to prevent those conflicts of authority,
which in the past have been the occasion of attacks upon
the bench.

In the Colonies, how;ever, legislatures are not supreme,
and " encroachments and oppressions " against the law may
not be unknown. In the early days of responsible govern-
ment in Australia, there were some sharp conflicts between

THE JUDICIAL OFFICE. 277

the popular chamber or the Parliamentary Executive and
the Courts, and even between Parliament and the Courts,
in which, it must be owned, that it was not always the
judges who carried away the honours of war. There was a
disposition on the part of some judges, as there has been on
the part of the military authorities, to regard themselves as
standing outside the system of responsible government, and
as entitled, in their official relations, to communicate with
the Governor without the intervention of a Minister. There
was in South Australia, what Sir Roundell Palmer and Sir
Robert Collier described as "an unfortunate disposition
manifested upon the bench to favour technical objections
against the validity of Acts of the Colonial legislature."
And this "unfortunate disposition" was made by the
Government and the Legislature the excuse for the perpetu-
ation of a Court of Appeals consisting practically of the
Executive Government, a tribunal the unfitness of which
called for strong remonstrance from the Secretary of State.
In Victoria, during the "deadlocks" of 1865 and 1867, the
Courts were called on to adjudicate upon the measures
taken by the Government, with the support of the Legis-
lative Assembly, for carrying on the government of the
I Colony without an Appropriation Act ; and in two cases
■ decided against the validity of the Government Acts.^

It is not, therefore, an ideal arrangement, which makes the

j judges of the Supreme Courts removable on the address of

j the two Houses of the Legislature. The power of removal

upon such address, in some Colonies, belongs to "Her

I Majesty " ; in others, " to the Governor in Council." Where

: the power is exerciseable by Her Majesty, it is upon the

I advice of the Secretary of State ; and it has been established

j that " in dismissing a judge in compliance with addresses

from a local legislature, and in conformity with that law,

j the Queen is not performing a mere ministerial act, but

adopting a grave responsibility, which Her Majesty cannot

be advised to incur without satisfactory evidence that the

M1865) Stevenson v. Reg., 2 W.W. & A'B. (L.), 143; (1867) Alcoch v.
Fergiey 4 W.W. & A'B.

278 ORGANIZATION OF COURTS.

dismissal is proper." ^ Where, on the other hand, the power
under the local law is in the Governor, he must act as in
other matters upon the advice of his Ministry, and there is
no legal security that the occasion is a proper one for
dismissal. It seems clear, that, in such a case, there is no
power to appeal to the Queen in Council.^

The appointment, tenure, and emoluments of Justices, not
of the High Court alone, but of the other Courts created by
The Parliament, are defined by section 72. They

i. Shall be appointed by the Governor General in
Council.

(This is in accordance with the practice which now
prevails in self-governing Colonies, where the judges are
appointed by the Governor by commission. Formerly, the
judges received a grant of their office by Letters Patent
from the Crown.)

ii. Shall not be removed except by the Governor-
General in Council, on an address from both Houses of
The Parliament in the same session, praying for such
removal on the ground of proved misbehaviour or in-
capacity.

iii. Shall receive such remuneration as The Parliament
may fix; but the remuneration shall not be diminished
during their continuance in oflSce.

These provisions go beyond those contained in any
English or Colonial Act, or in the Constitution of the United
States, for protecting the judiciary. As in the United
States, the tenure of emoluments of judges of all federal
courts are protected by the Constitution ; while the Con-
stitution supplies a defect which has been noticed in the
American Constitution, it prescribes the minimum number
of justices in the High Court. The English and Colonial
model gives no protection against Parliament ; the power to
remove on an address of both Houses is in addition to the
power to remove for misbehaviour. In the Commonwealth,
these independent powers are interwoven — the Executive

1 Case of Mr. Justice Boothby, Todd 848.

* Otherwise, if the removal is under the powers of 22 Geo. III. , c. 75.

THE JUDICIAL OFFICE. 279

may remove only upon an address, which is to be based on
proof of the causes stated.

Nevertheless, it is not less true of the Commonwealth
than of the United States, that the judicial department does
not really have an independent existence with the legisla-
tive and executive departments. That there is no legal
process for compelling the Governor-General in Council to
proceed to the appointment of judges, is no more than may
be said of other powers and duties, notably the summoning
of The Parliament. But, while there is the imperative
necessity of obtaining money or authority to spend money
to secure the latter, there is not the same necessity
for appointing judges or preserving the existence of
Commonwealth Courts. The Ministry of the day and the
two Houses of The Parliament would, it cannot be doubted,
be the sole judges of what constituted misbehaviour or
incapacity, and when or how such misbehaviour or in-
capacity was " proved " ; their action would not be subject
to review in any court of law. Though a judge may not be
removed except as provided, the legislature may abolish
courts other than the High Court ; and there is nothing to
protect the judges from loss of office upon such an event,
and nothing to secure them compensation. The legal
consequences of such an abolition have been discussed in the
United States on the action of Jefferson in 1802.^ The
remuneration of judges is not fixed or appropriated by
the Constitution, and the provision for salaries is, of course,
within the discretion of the Executive and The Parliament.
A recent decision ^ of the Judicial Committee, however,
throws light upon the constitutional provisions as to the
appointment and tenure of judges. An Imperial Act, 15
and 16 Vict., c. 72, appropriated a sum of money for the
salary of a Chief Justice and a puisne judge in New
Zealand, and gave power to the General Assembly of New
Zealand to alter these appropriations by any Act or Acts,
provided that the salary of a judge should not be diminished
during his continuance in office. An Act of New Zealand —
^ Story, section 1633. 2 l r . (i892), A.C. 387.

280 ORGANIZATION OF COURTS.

the Supreme Court Judges Act, 1858 — enacted that the
Supreme Court should consist of " a Chief Justice and such
other judges as His Excellency in the name and on behalf
of Her Majesty shall from time to time appoint." Under
this power the Government appointed an additional judge,
for whom a salary had not been provided by Parliament.
Parliament refused to appoint a salary, and proceedings
were taken by quo warranto against the judge. The
Judicial Committee said : " It is manifest that the limitation
of the legislative power of the General Assembly was
designed to secure the independence of the judges. It was
not to be in the power of the Colonial Parliament to affect
the salary of any judge to his prejudice during his continu-
ance in office. But if the Executive could appoint a judge
without a salary, and he needed to come to Parliament
every year for remuneration for his services, the proviso
would be rendered practically ineffectual, and the end
sought to be gained would be defeated. It may well be
doubted whether this proviso does not by implication
declare that no judge shall hereafter be appointed save with
a salary provided by law, to which he shall be entitled
during his continuance in office, and his right to which
could only be affected by that action of the New Zealand
legislature, which is excluded by the Imperial Act." After
such an intimation of opinion, the Executive will be
practically bound to submit to Parliament a permanent
appropriation of salary for a new judgeship before the office
is filled, and will act rightly in refusing to make any judicial
appointment without such permanent provision.

LIMITATIONS UPON CONSTITUTIONAL PEOVISIONS AS TO
JUDICIAL POWER

The general vesting of the judicial power of the Common-
wealth in Courts, whose justices are protected under section
72, may raise the question whether any judicial power may
be exercised, except by courts constituted as required by
section 72. In the United States it is accepted, notwith-
standing the general terms used, that a certain amount of

THE JUDICIAL POWER. 281

judicial power has been commonly, and perhaps necessarily,
associated with certain offices ; and that this power is
exerciseable under the United States by the like officers,
though they are not protected under the terms of the
Constitution. It has been said that the Constitution, in
speaking of courts and judges, means " those who exercise
all the regular and permanent duties which belong to a
court in the ordinary popular signification of the terms.^
The Justices of the Peace under the authority of the United
States, exercising duties partly judicial and partly executive
and ministerial, are not regarded as "courts" within the
Constitution. There are in fact many officers who are
called on, in the ordinary course of their duties, to discharge
functions which blend the judicial and administrative, as
masters, chief clerks, and some other officers of court.
These officers will not be within the Constitutional pro-
vision. The same may be said of the Inter-State Commission
and of courts martial, administering military law over
persons in the defence forces of the Commonwealth. Of
courts martial of the United States, Winthrop^ says, that
" although their legal sanction is no less than that of the
federal courts, being equally with these authorized by the
Constitution, they are, unlike these, not a portion of the
judiciary of the United States, and are thus not included
among the ' inferior courts ' which Congress may from time
to time establish." .... Not belonging to the judicial
branch of the Government, it follows that courts martial
must appertain to the executive department ; and they are
in fact simply instrumentalities of the executive power,
provided by Congress for the President as commander-
in-chief, to aid him in properly commanding the army and
navy and enforcing discipline therein, and utilized under
his orders or those of his authorized military representa-
tives.^

^ Sergeant on the Constitution, cit. Story, sec. 1634, n.
^ Winthrop's Military Law, pp. 52 and 53, cited Thayer's Gonstitviional
Cases, p. 2339.

See also ante, on the Inter-State Commission.

CHAPTER XVIII.

THE STATES.

In an earlier chapter, it is remarked, that one of the
diflSculties, which beset political science and constitutional
law, is the use of the same term in different senses. The
fact of such use must be acknowledged ; and Story, in his
chapter on the Interpretation of the Constitution of the
United States, warns us against men of ingenious and
subtle minds " who seek for symmetry and harmony in
language." The term " State " in the Constitution of the
United States is used in various senses. It "sometimes
means the separate sections of territory occupied by the
political society within each; sometimes the particular
government established by those societies ; sometimes those
societies as organized into those particular governments;
and, lastly, sometimes the people composing these political
societies in their highest sovereign capacity." ^ In like
manner, the Commonwealth Constitution uses the term
sometimes of territory {e.g. sections 80, 92, 125), sometimes
of the political society, sometimes of the government of the
political society or some appropriate organ thereof; and if it
does not refer to the people of the political society " in their
highest sovereign capacity," it appears in some cases to
describe the people of the society as an economic unit (e.g.
sections 51 (2), 99). It happens more than once, that, in the

^Madison's Virginia Report, 1800, cited by Story on the Constitution,
sections 454 and 208, n.

NEW POWERS. 283

same section, the term is used in different senses ; and there
is room for not a little doubt in some cases as to the
meaning of the term — e.g. in section 99 " preference to any-
State," and section 102 "preference or discrimination is
undue or unreasonable or unjust to any State." In general
it may be noted, that, when the Constitution saves powers or
grants powers or imposes positive duties, it specifically refers
to the organ of State Government, which has hitherto
exercised, or is intended to exercise, the power or perform the
duty in question; and when it withdraws an accustomed
power, or imposes a prohibition, it uses the term " State " as
comprising all possible sources of action,^

As the State Commonwealth is a Federal Commonwealth,
it is impossible to advance a step in the consideration of the
Constitution without meeting the States. It is true of the
Commonwealth as of the United States, that " the Constitu-
tion in all its provisions looks to an indestructible Union
composed of indestructible States." ^

NEW POWEKS OF THE STATES.

(a) As Instruments of the Constitution.

The States appear in the Commonwealth in more than
one capacity. First and foremost, of course, they are the
local parts in the composite government of a federation.
They are also the foundation upon which one House, and in
a sense both Houses, of The Parliament are built. But they
are also, in a special sense, the instruments of the Constitu-
tion in the formation of the central government. In the
chapter on "The Parliament," various powers and duties
incident to constituting that body are imposed upon the
Governor and the Legislature of the State ; and in all
sorts of matters, which must be the subject of some regula-
tion, the laws of the States in their respective territories are
applied to the subject matter, or the State Parliament is
given power to make laws regarding them, "until The

^Not always, however. For example, sections 112, 118, 120.
^ State of Texas v. White (1868), 7 Wallace, 700, 725.

284 THE STATES.

Parliament otherwise provides." ^ In addition to the inci-
dental and auxiliary powers and duties conferred upon the
States, or the organs of the State government, by the Con-
stitution, there are some substantive matters in which new
powers or duties are conferred upon the States. We have
seen under the head of the Legislative power the importance
in certain cases of State initiative or concurrence, as a condi-
tion of the validity of certain Commonwealth laws. The
Constitution also contains important provisions enabling
the States to surrender their territory (sections 111, 125), to
consent to an alteration of boundaries (section 123), or to
the establishment of new States by separation of territory
or union of States (124).

One matter affecting The Parliament is regarded as
essentially of local concern, and is left to the regulation
of the State Parliament altogether (section 9). Without
the co-operation of the States Governments at the outset,
the central government could not be set to work.

(b) As Delegates of the Commonwealth Government.

The Commonwealth laws bind the State Courts ; and we
have seen that the Constitution enables The Parliament to
constitute the State Courts its instruments for the adminis-
tration of justice. Whether, and to what extent, the
Commonwealth Parliament may delegate legislative power
to The Parliament of the States, is a question not free from
doubt ; it may not be of great practical importance, since
comparatively few of the Commonwealth powers of legisla-
tion are exclusive. The Commonwealth Government is
organized on the executive side, and is not dependent on the
States ; but the State Executive may, if the State Govern-
ments agree, be used as the instrument of the Commonwealth.
In the United States, from the establishment of the Consti-
tution, the federal government has been in the habit of

^ The power of the States, and the application of its laws in such cases,
seem strictly limited by the words "until The Parliament otherwise
provides." If The Parliament provides and then repeals its law without
making further provision, it is apprehended that there is no power in the
State to supply the defect of authority.

CONSTITUTIONS. 285

using, with the consent of the States, their officers, institu-
tions, and tribunals as its agents. That use has not been
deemed a violation of any principle, or as in any manner
derogating from the sovereign authority of the federal
government, but as a matter of convenience and a great
saving of expense.^ The Constitution of the Commonwealth
itself indicates one matter of executive government, in which
the State is to be the auxiliary of the Commonwealth. By
section 120 it is enacted, that "every State shall make
provision for the detention in its prisons of persons accused
or convicted of offences against the laws of the Common-
wealth, and for the punishment of persons convicted of such
offences, and The Parliament of the Commonwealth may
make laws to give effect to this provision."

The chapter of the Constitution on Finance and Trade
deals with the rights and duties of the States considered as
political entities, so far as their economic relation with
each other and the Commonwealth are concerned. The
chapter on the States deals with their respective relations
of political power and governmental duty. In general, the
Commonwealth Constitution, like that of the United
States, treats the individual rather than the State as the
subject upon whom the fundamental law is binding. In
these two chapters, however, the "national" element re-
cedes, and the " federal " note predominates.

THE STATES CONSTITUTIONS.

By section 106, " The Constitution of each State of the
Commonwealth shall, subject to this Constitution, continue
as at the establishment of the Commonwealth or as at the
admission or establishment of the State, as the case may
be, until altered in accordance with the Constitution of the
State." By section 107, " Every power of the Parliament
of a Colony, which has become or becomes a State, shall,
unless it is by this Constitution exclusively vested in The
Parliament of the Commonwealth or withdrawn from the

1 U.S. V. Jmes, 109, U.S., 513, 519.

286 THE STATES.

Parliament of the State, continue as at the establishment
of the Commonwealth or as at the admission or establish-
ment of the State, as the case may be." In speaking of
" the Constitution of each State," the section suggests that
there is in each State a law or body of laws, defined and
ascertainable, to which the term " Constitution " can be
applied. This is, however, no more true of the States than
it is of the United Kingdom. As has been seen in chapter i.,
the constitutional law of the Colonies, taking that term
in its narrowest sense, is to be ascertained only by the
consideration of a number of statutory provisions and
prerogative instruments. In no respect does the Con-
stitution of the Commonwealth differ more markedly from
the Constitution of the Dominion of Canada, than in this
— that, while in Canada the British North America Act,
distributing as it did the powers of government between
Dominion and Provinces, had to organize both, the
Australian Constitution had not, as any part of its object,
the framing of a government for the States. The principle
of State autonomy has been carefully observed. In
accordance with this principle, the Constitution omits
clauses of the Bill of 1891, which required that there
should be a Governor in each State, and proposed that the
Parliament of each State might make such provisions as
it thought fit as to the manner of appointment of the
Governor of the State, and for the tenure of his office and
for his removal from office. The Constitution no doubt
assumes the continuance of the States Governments in their
present form, in that it refers to the " Governor," the
"Governor with the advice of the Executive Council"
(section 15), "the Parliament," the ^'Houses of the Parlia-
ment of the State sitting and voting together," and " the
more numerous House of the Parliament of the State." So
far as the Governor of a State is concerned, the Constitu-
tion provides by section 110, that " the provisions of this
Constitution relating to the Governor of a State extend
and apply to the chief executive officer or administrator of
the government of the State." For the rest, there is room

THE STATE AND THE CROWN. 287

for some doubt as to the consequences of an alteration of
the State Constitutions. But whatever may be the in-
convenience to the Commonwealth of the abolition of
certain State machinery, it cannot affect the power of the
State over its own institutions.

THE STATE AND THE CEOWN.

The appointment of State Governors will for the present,
and until altered by the Crown itself or by Imperial or State
Statute, remain with the Crown. It may be determined to
revert to the old custom, whereby the Governor-General
was also Governor of each of the Colonies ; but this is a
matter which lies quite outside the Commonwealth Con-
stitution. In the Colonies, the Crown was the supreme
executive and legislative head, and, as has been seen,
personified the colony. The same is true of the State.
Even as to Canada, where there is much greater dependence
^ of the Provinces of the Dominion, and where the
i Lieutenant-Governors are appointed by the Governor-
General as an act of internal administration, it has been
I held by the Judicial Committee, that " the relation between
, the Crown and the provinces is the same as that which
! subsists between the Crown and Dominion in respect of
\ such powers, executive and legislative, as are vested in
! them respectively." 1 Accordingly, though the Governor-
\ General is by the Constitution declared to be Her Majesty's
I representative in the Commonwealth, this must in no way
j be taken to deprive the State of those prerogatives of the
\ Crown applicable to the matters which remain to the
j State.

Not only does the Crown remain a part of the State Govern-

I nient, but the State Government retains direct relations

I with the Imperial Government. One of the great objects

to be attained by federation was, no doubt, that Australia

should speak to the Home Government with a single voice.

In pursuance of this policy, the Bill of 1891 contained a

' Maritime Bank of Canada v. Receiver General oj New Brunswick, L.E.
1892, A.C. 437.

288 THE STATES.

clause, by which all references and communications from a
State Governor to the Queen, or from the Queen to a State
Governor, were to be through the Governor-General. This
clause was not adopted by the Convention of 1897-8. The
object of unanimity in representation has been deemed to be
sufficiently accomplished by the delegation to the Common-
wealth Government of those matters, which appeared to be
of common concern. Obviously, there remain many matters
which affect directly the Home Government and a State
Government, but only remotely or not at all the other
States and the Commonwealth. This is notably the case
in regard to the legislation of the States, which it must be
remembered, in the absence of Commonwealth legislation,
covers a field hardly less extensive than before federation.
The Home Government therefore, on the establishment of
the Commonwealth, repeated the old instructions to Colonial
Governors.^ (See e.g. Government Gazette (Victoria), Jan.
2, 1901).

THE GOVEENOK OF A STATE.

The loss of executive powers by the Governor of a
Colony, on its becoming a State, will be sufficiently apparent
by a consideration of the executive departments passing to
the Commonwealth Government. But the transference of
the departments of Naval and Military Defence (section 69),
the provision in section 114 that " a State shall not, without
the consent of The Parliament of the Commonwealth, raise
or maintain any naval or military force," and the vesting
of the command-in- chief of the naval and military forces of
the Commonwealth (section 68) and of the Crown in the
Governor-General, deprive the Governor of one of his
titles. The old Letters Patent and Commissions con-
stituted and appointed respectively a "Governor and
Commander-in-Chief in and over the Colony of . . . and
its Dependencies." New Letters Patent and Commissions
were issued for the States on the establishment of the

^ The States propose to continue the appointment of separate Agents-
General in London, but as business rather than diplomatic agents.

I

TEE STATE GOVERNOR. 289

Commonwealth, and they constituted and appointed re-
spectively a " Governor of the State of . . . and its
Dependencies, in the Commonwealth of Australia." ^ It is
surmised that the Governor of a State is still Vice-Admiral.^
Por the rest, the prerogative instruments, affecting the office
of Governor of a State, are substantially the same as those
relating to the office pf a Colonial Governor. The grant
of the pardoning power to the State Governors recognizes
the distinction between offences against State laws and
offences against Commonwealth laws, and seeks to avoid
all danger of conflict. The Letters Patent (clause ix.)
provide, that when any crime or offence has been com-
mitted within the State against the laws of the State, or
for which the offender may be tried therein, the Governor
may pardon an informer who has been an accomplice or
one of the offenders, and further may grant to any
offender convicted in any Court of the State, or before
any Judge or Magistrate of the State, within the State, a
pardon, etc. It is clear, therefore, that, as to convicted
offenders, the power extends only to convictions in the
Courts of the State, and does not apply to convictions in
Commonwealth Courts, or {semhle) an Imperial Court like
the Court of Vice-Admiralty. In construing the clause,
it would appear that " within the State " governs
" against the laws of the State " only, and that the
expression " or for which the offender may be tried
therein " refers to offences, which are recognizable by the
Courts of the State though committed outside the State.
If this were not so, and the words " within the State "
applied to both classes of offences referred to, the Governor
of a State would have power to pardon informers and
persons convicted in State Courts for offences against
Commonwealth laws ; and there would thus be produced
the very conflict of authority which ought to be avoided.

^Oovernment Gazette (Victoria), Jan. 2, 1901.

'^Seethe Vice-Admiralty Courts Acts, ISGSand 1867; and the Colonial
Courts of Admiralty Act, 1890.

290 THE STATES.

THE PARLIAMENTS OF THE STATES.

In construing section 107, it must be remembered that,
amongst the powers of a State Parliament, is the power of
altering its constitution ; and it is within the possibilities
of political change, that the Parliaments may establish
legislatures of limited powers, and may provide for the
enactment of laws with the co-operation of the electors-
There is some difference of opinion as to the extent of con-
stitutional change, which may be effected by a colonial
Parliament without resort to the Imperial Parliament, but
it is safe to conclude, that those powers are neither extended
nor restricted by section 107.

The section is an express declaration of the principle
underlying the federal system of the Commonwealth — that
the residuary power of legislation lies in the States, and
that power over any matter is not withdrawn from the
State Parliament merely because it is vested in the Com-
monwealth Parliament. The relation of laws, enacted by
both in matters within the power of each, is dealt with by
section 109, which has been already considered. What
powers are withdrawn from the States, and what exclusively
vested in the Commonwealth, have also been considered in
reference to the powers of the Commonwealth Government,
and to finance and trade. In a few cases, the Constitution
itself returns a portion of the power which it has with-
drawn. Thus, notwithstanding the provisions of sections
51, 90, and 92, a State may levy on goods passing into and
out of the State charges for the execution of its inspection
laws (section 112), and, by section 113, intoxicating liquids
introduced into any State are, notwithstanding that they
are subjects of inter-State commerce, subject to the laws of
the States in the same way as liquids produced in the
State.i

' Section 113 is suggested by the "Wilson Bill," which was passed by
Congress in 1890, as a result of certain decisions of the Supreme Court,
notably Leisy v. Hardin, 135 U.S. 100.

LIMITATIONS AND SPECIAL POWERS. 291

TERRITORIAL LIMITATIONS ON STATE AUTHORITY.

In the United States it is settled that, the legislative
authority of every State must spend its force within the
territorial limits of the State.^ This doctrine finds
practical application as a matter of constitutional law, in
the rule, first, that State laws have no authority on the
high seas beyond State lines, because that is the point of
contact with other nations, and all international questions
belong to the national government ; and, secondly, that
the State cannot provide for the punishment as crimes of
acts committed beyond the State boundary, because such
acts, if offences at all, must be offences against the State
in whose limits they were committed. On the other hand,
persons who have recourse to the tribunals of the State
must take the law of the State as they find it ; and though
the courts of the States generally, in determining the appli-
cation of law, defer to Private International Law, they do
not do so as a matter of Constitutional Law, save in the
limited class of cases under Art. iv., sections 1 and 2, and
Private International Law is in general part of the laws
of the State upon which State legislation may operate.

It has been seen already ,2 that the Parliaments of
British Colonies are local and territorial legislatures, and
that certain limitations of power are deduced therefrom.
The most important of these limitations remain, and are
neither greater nor less in the States of the Commonwealth
than they were in the Colonies which preceded them.

SPECIAL POWERS UNDER IMPERIAL ACTS.

Certain of these limitations, however, have been removed
by Imperial Acts, and certain powers not incident to a
mere local legislature have been conferred upon the
Parliaments of the Colonies. Other Imperial Acts have
conferred powers to vary the Imperial law, or to supple-

^ Cooley, Constitutional Limitations, 6th ed., 149.
2 See chapter i.

292 THE STATES.

ment it. Section 107 serves to make it clear, that the
special powers of legislation in regard to these matters,
conferred upon the Colonial Parliaments before the
institution of the Commonwealth, remain to the States
Parliaments. Some of them, however, fall within the ex-
ceptions of section 107 — they are by the Constitution
withdrawn from the States, or vested exclusively in the
Commonwealth Parliament. By section vii. of the Act,
the powers conferred upon the Colonial Parliaments by
the Colonial Boundaries Act, 1895, are withdrawn, and
the Commonwealth is to be taken to be a self-governing
Colony for the purposes of that Act. Another power
withdrawn is that over coinage (section 115). The special
powers conferred by Imperial Acts in relation to defence,
inland posts, customs, and a few other matters, belong
solely to the Commonwealth Parliament, because the
subjects themselves are declared to be within the exclusive
power. With regard to any special powers, which may be
conferred by the Imperial Parliament on Colonial legisla-
tures in the future, there is room for some doubt as to the
authorities which may exercise them in Australia. The
Interpretation Act, 1889, section 18 (3), provides, that in
all subsequent Acts, unless the contrary intention appears,
" the expression ' colony ' shall mean any part of Her
Majesty's Dominions exclusive of the British Islands and
of British India, and when parts of such dominions are
under both a central and a local legislature, all parts under
the central legislature shall for the purposes of this defini-
tion be deemed to be one colony." By section 18 (7) " the
expression ' colonial legislature,' and the expression ' legis-
lature,' when used with reference to a British possession,
shall respectively mean the authority other than the
Imperial Parliament or Her Majesty in Council, competent
to make laws for a British possession." If the special
power granted relates to a matter within the legislative
power of the Commonwealth Parliament — as, for instance,
if extended powers were granted to colonial legislatures to
vary or suspend the operation of the Imperial Copyright

SPECIAL POWERS UNDER IMPERIAL ACTS. 293

Acts in that possession — it will be exerciseable by the
Commonwealth Parliament exclusively. But if it relates
to a subject not within the power of the Commonwealth
Parliament, but in the residuary power of the States — as,
for instance, if it gives power to colonial legislatures to
make laws punishing crimes committed out of their terri-
tory— it is doubtful ' whether the State Parliament or the
Commonwealth Parliament would take the power as the
authority competent to make laws for the possession.

The Courts of the States, of course, continue to apply
the doctrines of Private International Law in proper cases ;
but as part of their own law which the State Parliaments
may alter. That the " rule of comity," however, becomes a
rule of Constitutional Law in one case, has been seen in
dealing with the effect of section 118 under " Judicature."
The power of the State Parliament is also restrained by
section 117, whereby

" A subject of the Queen resident in any State shall not
be subject in any other State to any disability or discrimi-
nation, which would not be equally applicable to him if he
were a subject of the Queen resident in such other State."

It is a general characteristic of the Constitution that, as
a rule, it does not impose any restraint upon government,
except to further some federal purpose. Section 117 aims,
not at the protection of individual right against govern-
ment interference, but at the prevention of discrimination
by one State against those who are sometimes referred to
as the " subjects " of the other. The section aims at
equality, and if the laws of a State refrain from disabling
provisions and injurious distinctions affecting the subjects
of other States, the section is fulfilled. It is, therefore, very
different in character from those provisions of the Con-
stitution of the United States, which forbid the States to
pass any Act of Attainder, ex 'post facto law, or law impair-
ing the obligation of contracts, and from the Thirteenth,
Fourteenth, and Fifteenth Amendments to that Constitu-
tion, which, as protecting the States' own citizens, are
essentially iiatiomd, as distinguished from federal pro-

294 THE STATES.

visions. It must be compared with Art. iv., sec. 2, of the
United States Constitution, whereby " the citizens of each
State are entitled to all privileges and immunities of
citizens in the several States " ; and the sole purpose of that
clause, as declared by the Supreme Court, is the sole purpose
of section 117 — " to declare to the several States that
whatever those rights as you grant or establish them to
your own citizens, or as you limit or qualify or impose
restrictions on their exercise, the same, neither more nor
less, shall be the measure of the rights of citizens of other
states within your jurisdiction." ^

There is a difference in form between section 117 and
the privileges and immunities clause in the United States
Constitution. Section 117 does not purport to grant
anything, but merely protects against deprivations and
injurious distinctions, while the United States Constitution
uses terms of grant, and " privileges and immunities " might
certainly include, if they did not suggest, the enjoyment of
every kind or advantage open to citizens. The American
Courts have, however, put a much narrower construction
on the clause, and the terms of section 117 not inaptly
express, so far as any general terms can, the nature of the
uses to which the American provision has been put. It has
been held that the " privileges and immunities " clause only
secures those fundamental advantages which belong of right
to the citizens of all free governments, and these have been
enumerated as implying "protection by the government,
the enjoyment of life and liberty, with the right to acquire
and possess property of every kind, and to pursue and
obtain happiness and safety ; subject, nevertheless, to such
restraints as the government may justly prescribe for the
general good of the whole." These rights are more particu-
larly instanced by a reference to " the right of a citizen of
one State to pass through, or to reside in, any other State
for purposes of trade, agriculture, professional pursuits or
otherwise; to claim the benefit of the writ of habeas
corpus; to institute and maintain actions of any kind in
^Per Miller, J., in the Slaughter House Cases, 16 Wallace 77.

SPECIAL POWERS UNDER IMPERIAL ACTS. 295

the courts of the States; to take, hold, and dispose of
property either real or personal ; and an exemption from
higher taxes or impositions than are paid by the other
citizens of the State," " to which may be added the elective
franchise as regulated and established by the laws or
Constitution of the State in which it is to be exercised." ^
An example of an obvious discrimination is to be found in
an attempt by a State to give a preference to local creditors
over creditors in other States.^

Distinctions based on " fundamental rights " are not very
helpful in the solution of every-day problems in the
application of law ; and it is easier to see, that some limit
will be put upon section 117, than to lay down any single
principle on which it can be established. In the later
decisions the United States Courts deprecate the attempt to
state formally the limits of Art. iv., sec. 2, and are disposed
to treat each case on its merits. In Gorfield v. Coryell
the Supreme Court refused to admit, that " the citizens of
the several States are permitted to participate in all the
rights, which belong exclusively to the citizens of any other
particular State, merely on the ground that they are en-
joyed by those citizens, much less that in regulating the use
of the common property of the subjects of such State, the
legislature is bound to extend to the citizens of all such
other States the same advantages as are secured to its own
citizens." Accordingly, in 1876, the Court supported a law
of Virginia limiting the enjoyment of the oyster fishery in
that State to citizens of Virginia.^ The same application
of the doctrine in the Commonwealth would operate so as
to enable a State to refuse a miner's right, or a right to
select Crown land, to residents in another State, for in both
cases the State is dealing with its property rights. The
American doctrine seems to receive support from the
decision of the Judicial Committee in Attoi^ney General for
the Dominion of Canada v. Provinces of Ontario, Quebec

1 Gorjield v. Coryell (1825), 4 Washington C.C. 380.
''Blake v. M'Clung (1898), 172 U.S. 239.
^M'Cready v. Virginia, 94 U.S. 391.

296 THE STATES.

and Nova Scotia, a case which goes very far in the pro-
tection of the proprietary rights of the Provinces, in the
adjustment of governmental powers.^

Other cases in the United States support different
treatment of residents and non-residents, on the ground
that there is some valid reason of justice or convenience
for the discrimination, and that the distinction violates no
sound principle. Thus the Supreme Court has supported a
provision in a State Statute of Limitations, that the absence
of the defendant from the State prevents time running
against a creditor resident in, but not against a creditor
resident out of, the State.^ It has been held that the
common requirement, that a plaintiff resident in another
State shall give security for costs, is not ultra vires}
Again, the section does not annihilate the distinctions of
persons known to Private International Law, rules of
reason established by the Courts to do justice between the
parties.* It does not enlarge the jurisdiction, which is
ordinarily assumed on well settled principles ; nor does it
require the Courts to apply their local law to causes, which
are properly governed by the law of some other State.
Thus, a State is within its powers in limiting relief in
divorce to cases where the parties are domiciled in the
jurisdiction. Again, where the law of Louisiana estab-
lished community of goods between persons married or
having their matrimonial home in the State, it was held
that the privileges and immunities section did not govern
the rights of persons married and living in another State
in regard to property in Louisiana.^ Referring to cases
of another class, it has been said that the " privilege of
citizens is qualified and not absolute, for they cannot enjoy
the right of suffrage or eligibility to office without such

M1898) A.C. 700.

2 Chemung Canal Bank v. Lorvrey (1876), 93 U.S. 72.
'Cumingsv. Wingo, 10 S.E. Rep. 107 (S.C); Biake v. M 'Clung (1S9S),
172 U.S. 239, 256.
* See Lemmon v. The People (1860), 20 N.Y. 562.
5 Connor v. Elliot (1855), 18 How. 591.

TAXATION. 297

term of residence as shall be prescribed by the Constitution
and Laws of the State into which they shall remove." ^

TAXATION BY THE STATES.

The most obvious case, to which the section applies, is
discrimination in taxation. Of the American provision,
Judge Cooley ^ says, it " will preclude any State from
imposing on the property which citizens of other States
may own, or the business which they may carry on within
its limits, any higher burdens by way of taxation than are
imposed upon the corresponding property or business of its
own citizens." Accordingly, a special tax on commercial
travellers from other countries (such, for instance, as is
imposed by New Zealand) would be bad so far as
travellers from other States are concerned.^ An absentee
tax, or an increased rate of tax on non-residents,
would also be bad; but this does not mean that non-
residents are entitled to the most favourable treat-
ment accorded to any class of residents. A "resident
in a State " is an ambiguous term ; but probably the
residence intended is what has been called " habitual
physical presence" in the State, neither domicile on the
one hand nor mere temporary sojourn on the other.* A
State may, as a matter of policy, divide its residents into
classes, of which one may be treated on more favourable
terms than another. Section 117 appears to be satisfied, if
residents in other States are not treated more unfavourably
than the less favoured class of residents in the State — they
are not subject to a discrimination, which would not be
equally applicable to them, if they were residents in the
State and fell within the class affected.^

^ Abbot V. Bayley (1827), 6 Pickering 89 (Mass. ) ; and Minor v. Happersett
(1874), 21 Wallace 162, 174.

'^Constitutional Limitations, 6th ed., 597.

^See Ward v. Maryland, 12 Wall. 419, 430.

*See on " Residence," Dicey, Conflict of Laws, pp. 80, 159, and see BlaTce
V. M'Clung (1898), 172 U.S. 239.

•'' These considerations appear relevant to the provisions of the Income
Tax Act of Victoria (Act No. 1374). This Act imposes a tax upon all

298 THE STATES.

The benefit of* section 117 is secured only to British
subjects resident in a State, terms which exchide companies
from its scope. It is a personal advantage, and therefore
discriminations other than against persons or classes of
persons, if prohibited at all, are prohibited by other pro-
visions of the Constitution.

It has been seen that, on the establishment of the Com-
monwealth, the States are subject to the restriction, that
they may not tax the property of the Commonwealth;
that perhaps this extends to the " instrumentalities of the
Commonwealth"; and that, on the establishment of uniform
duties of customs, they may no longer impose duties of
customs or excise, nor put any tax upon inter-State trade,
commerce, or intercourse. Further, discriminations, injuri-
ously affecting British subjects resident in other States, are
inoperative (section 117). Finally, it has been suggested,
that the Commonwealth power to make laws with respect
to " Taxation " may give very extensive powers of regu-
lating taxation by the States.

In the United States, the doctrine that the laws of a
State can have no extra-territorial operation has been
applied to limit strictly, as a matter of constitutional law,
the taxing power of the States. Thus, in M'Culloch v.
Maryland,^ Marshall, C.J., said, " All subjects over which
the sovereign power of a State extends are objects of
taxation ; but those over which it does not extend are on
the soundest principles exempt from taxation." " The
subjects of taxation," it is said, " are persons, property, and
business, and any one of them may be taxed though the

income from personal exertions within, or property situated in, Victoria.
The minimum income taxed is £200, and, in respect to incomes over that
amount, a deduction of £200 is allowed. By section 8 (2) it is provided,
that "no person who has been out of Victoria for six consecutive months
in the year, during which the income was received, shall be entitled to any
deduction by way of exemption from income tax." This, it will be
observed, applies to all persons, *' residents " as well as non-residents ; and
the proper conclusion seems to be, that non-residents are not entitled to be
put on a more favourable footing than that class of residents who have not
qualified for the privilege of exemption.
1(1819)4 VVheaton316, 429.

TAXATION. 299

others are beyond the jurisdiction." ^ Where the person is
resident in a State (mere transient presence is not residence),
it seems that he may be taxed in proportion to the value
of his property, wherever situated; and upon the same
principle, a company may not be taxed upon the whole
amount of its capital stock, except by the State in which it
is domiciled. Where' taxation is based merely upon the
presence of property, or the carrying on of business in the
State, only the property there situated, or the business there
done, can be taxed. Intangible property follows the person
of the owner. Stock or shares in a company are taxed
where the owner of the stock resides. Debts are taxable
only in the State of the creditor, where alone they are
" property." Accordingly, bonds of a corporation, held by
non-residents in the State, are not taxable, even though the
corporation is chartered by or domiciled in the State, and
the corporation may successfully resist an attempt to levy a
tax in respect to them.^

No attempt has been made to limit the taxing power of
the Colonial Parliaments upon similar principles. The
limits of particular taxes have in many cases been expressly
laid down by Parliament, and the only judicial question has
been one of interpretation of the particular exercise of
legislative discretion.^ Where the limits have not been
defined, the Courts have sought to discover and apply just
principles to the incidence of the tax.

Save for the restrictions mentioned as arising out of the
Constitution, the powers of taxation belonging to the State
Parliaments are the same as those of the Parliaments of the
Colonies. It is submitted, that the State Parliaments are
not subject to the limitations which the American Courts

^ Hare, Constitutional Laiv, p. 322, and Case of the State Tax on Foreign
Held Bonds (1872), 15 Wallace 300.

^See generally Hare, Constitutional Law, pp. 317-330; Commonwealth of
Pennsylvania y. Standard Oil Coy., 101 Penn. St. 119; Case of the State
Tax on Foreign Held Bonds (1872), 15 Wall. 300 ; Gloucester Ferry Coy. v.
Pennsylvania (1885), 114 U.S. 196; Pidlman's Car Coy. v. Pennsylvania,
141 U.S. 18.

2 See Blackwood v. The Queen (1882), 8 App. Cas. 82.

300 THE STATES.

have inferred from the territorial operation of laws, and
that the taxing power ia limited territorially only by the
ability of the legislature to make its laws effective in its
own territory. The question is one of considerable practical
importance, especially in relation to companies. Several of
the Colonies,^ for example, have passed laws, similar to those
which have been declared unconstitutional in America,
requiring companies to pay a tax in respect of their de-
bentures and preference shares held by persons resident out
of the several colonies, and to deduct the amount from the
interest or dividend of the creditor. If the American
doctrine applies, such companies can successfully resist the
claim of the Government, and the debenture holder may, in
the Courts of the State itself, recover from the Company
the full amount of the interest which it has contracted to
pay him. If, on the other hand, such provisions are con-
stitutional, the Company may, by proceedings in the Courts
of the State, be compelled to comply with the Statute, and
the authority of the Statute will be a complete answer to
any proceedings in those Courts by the debenture holder
against the Government; for there is no provision in the
Australian Constitution prohibiting laws which impair the
obligation of contracts. But it must be remembered, first,
that a State Government is unable to resort to the Courts
of any other State to enforce its revenue laws; and,
secondly, that, if the contract between the Company and its
debenture holder be not governed by the law of the State,
the authority of the Statute will not protect the company
in any other jurisdiction in which it may be suable by the
creditor.^

THE "POLICE POWER" OF THE STATES.

In every work on the Constitution of the United States,
we find reference to the " police power " of the States.

1 Victoria, Income Tax, 1896, sec. 19 (1) ; N.S. W., Land and Income Tax
Assessment Act, 1895, sec. 22 ; Qwensland, Dividend Duty Act, 1890.

2 See SpiUer v. Turner (1897), 1 Ch. 911.

POLICE POWER. 301

In the Mayor of New York v. Miln ^ the Supreme Court
described the powers " which relate to merely municipal
legislation, or what may perhaps more properly be called
internal police," in the following terms : " We should say
that every law came within this description which con-
cerned the welfare of the whole people of a State or any
individual within it ; whether it related to their rights or
their duties ; whether it respected them as men or as
citizens of the State ; whether in their public or private
relations ; whether it related to the rights of persons or of
property, of the whole people of a State or of any indi-
vidual within it ; and whose operation was within the
territorial limits of the State, and upon the persons and
things within its jurisdiction." A later decision, having a
closer relation to the modern idea of the functions of
government, describes it as the power " to prescribe regula-
tions to promote the health, peace, morals, education, and
good order of the people and to legislate so as to increase
the industries of the State, develop its resources, and add
to its wealth and prosperity." ^

At its broadest, the police power is nothing other than
the residuary power of government in the State, and, as
such, is hardly capable of exact definition. But it has
more restricted uses, as where it is distinguished from the
taxing power, or power over commerce; and the many
attempts that have been made by the Courts to describe
if not define it, vary according to the matter in hand and
the practical distinction to be emphasised. It has in fact
become the " dark continent " of American jurisprudence.^
Sometimes it is used in discussions of the limits of the
power of the States Legislatures, considered merely in rela-
tion to the distribution of power between legislative,
executive, and judicial authorities.^ Sometimes it is used

^1837) 11 Peters 102. See also Taney, C.J., in the License Cases
(1847), 5 Howard 504.
2 Barhier v. Connolly (1885), 113 U.S. 27.

^ Burgess, Political Science and Constitutional Latv, vol. ii., p. 136.
* See Thayer, Gases on Consitutional Law, p. 69?

302 THE STATES.

in considering the power of the States Legislatures, as
affected by the prohibitions and restrictions, either of the
State Constitutions, or the Constitution of the United
States.^ The Constitutions contain certain guarantees
against the interference of the States with privat^^^rights :
it is held, that such restrictions are to be read qdnsistently
with the police power, and that the State is not deprived
of its discretionary power to regulate good morals, promote
health, and preserve order, though in so doing it may
incidentally deteriorate property or diminish profits arising
out of a contract. So, though Congress has made patent
laws, the State may, as a matter of police, prohibit or
regulate the sale of the patent article in the State.^ Again,
though the admission of subjects or citizens of other
nations to American shores is a matter which can be
regulated by Congress alone, it may be that a State
can protect itself by appropriate legislation against
paupers and convicted criminals from abroad.^

So far as concerns the Federal Constitution, the
police power has been important mainly in relation to
its conflict with the power of Congress over foreign and
inter- State commerce. The Courts have declared the
commerce power of Congress to be partly exclusive of,
partly concurrent with, the power of the States. The
exclusive power of Congress over foreign and inter-
State commerce is mitigated by the doctrine, that, in the
absence of legislation by Congress, the State may affect
such commerce by their laws and police. Inspection
laws, health laws, quarantine laws, the introduction of
impure and adulterated foods or of diseased cattle, are
the most conspicuous illustrations of laws of this class.*

As has been pointed out in chapter viii., a law
may have more than one aspect. " All experience shows

See Commonwealth v. Alger, 7 Gushing 53 (Mass.), and Thorpe v.
Jiutland, etc., Railway Coy., 27 Vermont 840.
2 Patterson v. Kentucky, 97 U.S. 501.

See Chy Lung v. Freeman, 92 U.S. 275.
4 See Gibbons v. Ogden (1824), 9 Wheaton 1; Licence Cases (1847), 5
Howard 504 ; Railroad Coy. v. Husen, 95 U.S. 465.

POLICE POWER. 303

that the same measure or measures, scarcely distinguishable
from each other, may flow from distinct powers, but
that does not show that the powers themselves are
identical." ^ Public health is eminently a matter of
police and for the States ; foreign commerce belongs to
Congress; and a quarantine law is a legitimate exercise
of either power. If each authority has made a law upon
the subject, and there is a collision between them, the
law of Congress must prevail.^ On the other hand, there
has been a tendency on the part of Congress to enact laws,
purporting to be in pursuance of its commerce power,
but affecting matters, which have not become, or which
have ceased to be, subjects of foreign or inter- State
commerce. Such Acts, whether they affect the internal
commerce of a State or deal with matters which are
not the subjects of commerce at all, are an invasion of
the exclusive powers of the State, and are ultra vires.
It has been determined by a large number of cases, that
the police power is an exclusive power in the States,
and that there is no substantive police power in Congress.
The powers of Congress are limited by enumeration,
and the extent of the enumerated powers themselves
must be defined by a regard to the fact, that the Con-
stitution leaves with the States the general power to
protect the lives, health, and property of the citizens,
to preserve good order and the public morals. This
doctrine has received its most striking and practical
application in the restrictive interpretation, put by the
Courts, on the prohibition imposed upon the States, and
the powers conferred upon Congress, by the Fourteenth
and Fifteenth Amendments of the Constitution adopted
at the close of the Civil War.^

The frame of the Commonwealth Constitution is the
Constitution of the United States ; and it remains to

^ Per Marshall, C.J., in Gibbons v. Ogden, 9 Wheaton 1.
■^ lb., p. 209.

■' See the Slaiujhter House Canes (1873), 16 Wallace 36 ; Barbier v. Connolly
(1885), 113 U.S. 27 ; Civil Bights Cases (1883), 109 U.S. 3.

304 THE STATES.

consider how far the American discussions as to the nature
and extent of police power affect the States in Australia.
The powers of the States Parliaments in Australia are
lim'ited at fewer points than those of the States Legisla-
tures in America ; the " police power " is subject to fewer
limitations. The questions that have arisen in the United
States under the State Constitutions cannot at present
arise, for the States Parliaments enjoy plenary powers
unlimited by a distribution of powers among the legislative,
executive, and judicial organs, or by express restriction.
The States Parliaments indeed enjoy a position of inde-
pendence unknown to the States Legislatures in the United
States, or to the Provincial Parliaments in Canada. The
powers of the former have been controlled by that jealousy
and distrust of government, which has been a characteristic
of American constitutional history. The power of the
Provincial Parliaments in Canada is limited by the fact,
that they have enumerated powers merely, and that the
Dominion Executive exercises supervision over them. So
far as the Commonwealth Constitution is concerned, the
restriction upon State action, imposed by the U.S. Con-
stitution in the interests of individual liberty, are, with one
exception (sec. 117), absent. On the other hand, the
Commonwealth Constitution leaves room for the conflict of
the police power with commerce. The question in the Com-
monwealth will turn, not upon any " exclusive " power of
the Commonwealth Parliament implied by the Courts, but
upon the prohibitions of section 92. Some of the ambigui-
ties of that section have been already referred to ; ^ but it
raises also questions similar to those which have arisen in
America out of the exclusive power of Congress. In the
United States, it has been held, that " in conferring upon
Congress the regulation of commerce, it was never intended
to cut off the States from legislating upon all subjects
relating to the health, life, and safety of their citizens,
though the legislation might indirectly affect the commerce
of the country,^ and the strictest interpretation of the police

1 Chapter xi.— Finance and Trade. 2 Sherlock v. Ailing, 93 U.S. 99.

COMMERCE. 305

power has conceded, that a State may pass sanitary laws,
may prevent persons or animals suffering under contagious
or infectious diseases from entering the State, and for the
purpose of self -protection may establish quarantine and
reasonable inspection laws.^ Further, " a State may prevent
the introduction into the State of articles of trade, which, on
account of their existing condition, would bring in and
spread disease, pestilence, and death, such as rags or other
substances infected with the germs of yellow fever, or the
virus of smallpox, or cattle or meat or other provisions
that are diseased or decayed, or otherwise from their
condition or quality unfit for human use or consumption." ^
It can hardly be doubted that the like powers are exercise-
able by the States in the Commonwealth, and that a hona-
jide exercise of such powers is not an infringement of the
freedom of trade, commerce, and intercourse under § 92.
The case becomes more difficult, when we come to measures
for the protection of the moral health of the community.
The introduction of intoxicating liquids has given rise to
constitutional difficulties both in the United States and
Canada. In Leisy v. Hardin the Supreme Court of the
United States held, that a statute of Iowa, prohibiting the
transportation by a common carrier of intoxicating liquor
from a point within any other State for delivery at a place
within Iowa, was a restriction of Inter-State commerce, and
therefore ultra vires, though in the opinion of the Court, as
it might fairly be said that the provision in question had
been adopted, " not expressly for the purpose of regulating
commerce between its citizens and those of other States,
but as subservient to the general design of protecting the
morals and health of its people, and the peace and good
order of the State, against the physical and moral evils
arising from the unrestricted manufacture and sale within
the State of intoxicating liquors." In the Commonwealth

'^Railroad Company v. Husen, 95 U.S. 465, 472.

"^Bowman v. Chicago and N. W. Railway Coy. (1888), 125 U.S. 465, 489.
In this case and in Leisy v. Hardin (1890), 135 U.S. 100, the American
authorities are collected and examined.

U

306 THE STATES.

Constitution, this particular matter is provided for favour-
ably to the power of the State, by § 113, whereby "all
fermented, distilled, or other intoxicating liquids passing
into any State or remaining therein for use, consumption,
sale, or storage, shall be subject to the laws of the States as
if such liquids had been produced in the State." That the
State may, as a precautionary measure against social evils,
exclude convicts, harlots, paupers, idiots, and lunatics, is
now generally admitted in the United States. But as the
measure is one of self-defence, arising only from vital
necessity for its exercise, it must not be carried beyond the
scope of that necessity.^ This necessity can hardly be said
to exist in respect to the entrance of Asiatics or to the
admission of illiterate persons, the cloak under which laws
regulating the admission of aliens are commonly hidden.
A Victorian law, prohibiting the admission of Chinese from
New South Wales, unquestionably restricts freedom of
intercourse among the States, which i^ prima facie contrary
to section 92. It would seem that, though such a law is
genuinely aimed at preserving the peace and good order
and the moral health of the State, in such matters the Court
must take " short views " of policy, and must hold it to be
void by reason of its immediate purpose.^

While the domestic order of the States is a matter
for the States themselves, they are, like the States in
America, entitled to call on the Federal Government for
protection against "domestic violence"; and against "in-
vasion " the Federal Government is bound to protect them
without any request (sec. 119). But it is not to be for-
gotten, that in the United States it has been laid down,
that there is a " peace of the United States," ^ which
enables the Federal Government to take all steps which
it may think fit, and which its courts may support, to
protect the instruments and agencies of the Government,

1 The Passenger Cases, 7 Howard 283, per Grier, J. ; Henderson v. New
York and Chy Lung v. Freeman, 92 U.S. 275.

2 See the Liquor Prohibition Case (1896), A.C. 348.

^Inre Neagle, 135 U.S. 1 ; and see in re Debs. (1894), 158 U.S. 564.

RELIGION. 307

and to secure the due observance of its laws. In the
Commonwealth, the terms, which grant its powers to the
Parliament, enable it to make laws for the " peace, order,
and good government of the Commonwealth" in respect
to the matters committed to it, and it is safe to infer
that it will have powers at least as extensive as those
of the Federal Government in the United States. The
functions of the Commonwealth Government are so far-
reaching and its agencies and instrumentalities so many,
that internal disorders on any large scale could hardly
leave the peace, order, and good government of the
Commonwealth unaffected in regard to them. In such
a case the Commonwealth Government would intervene
upon its own initiative.

LAWS IN EESPECT OF RELIGION.

Section 116 contains a restriction upon the power of
the Commonwealth, which is not very aptly placed in the
chapter on " The States." It provides that " The Com-
monwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no
religious test shall be required as a qualification for any
office or public trust under the Commonwealth."

The last provision no doubt imposes a restraint on
power, and the prohibition of laws " for establishing any
religion " possibly prevents appropriations in aid of religious
bodies. In 1899, an attempt was made, under a similar
provision in the United States Constitution, to prevent
the execution of an agreement with the Providence
Hospital at Washington, a body incorporated by Act of
Congress, whereby that body was to receive certain sums
of money voted by Congress for providing an isolating
building. It was contended that, as the institution was
governed and maintained by Roman Catholics, this was
aid to a sectarian institution and was a law respecting
an establishment of religion. There was no suggestion
that the benefits of the hospital were confined to any

308 THE STATES.

sect, and the Court held, that the fact that the hospital
was controlled by a sect was immaterial in the case of
a body which had been incorporated, so long as the
management was in accordance with the constitution of
the body. The grant, therefore, was held to be lawful.^
In the Mormon case,^ where the provisions against
prohibition of the free exercise of any religion was relied
on, the Court held that " a person's religious belief could
not be accepted as a justification for his committing an
overt act made criminal by the law of the land." The words
" or for imposing any religious observance " are new. The
Convention was informed that, on the strength of a
decision of the Supreme Court that the United States were
a Christian people. Congress passed a law closing the
Chicago Exhibition on Sunday, "simply on the ground
that Sunday was a Christian day." It was represented,
that the words in the preamble of the Commonwealth
Constitution, " humbly relying on the blessing of Almighty
God," might give some support to similar attempts in
Australia, and accordingly words were inserted to meet
the danger. The words may have unlooked-for effects.
If " Sunday closing " is a " religious observance," can
the Commonwealth close the Custom House on Sunday,
or refuse a clearance to vessels on Sundays, Good Friday,
and Christmas Day ?

SAVING OF STATE LAWS.

Sec. 108. " Every law in force in a colony which has

become or becomes a State, and relating to any matter

within the powers of The Parliament of the Commonwealth,

shall, subject to this Constitution, continue in force in the

State, and until provision is made in that behalf by The

Parliament of the Commonwealth, the Parliament of

the State shall have such power of alteration and repeal

in respect of any such law as the Parliament of the colony

had until the colony became a State."

^Bradfidd v. Roberts (1889), 175 U.S. 291.
2 United States v. Reynolds (1878), 98 U.S. 145.

LA WS. 309

This section may be compared with the common pro-
vision in the Constitution Acts of the Colonies, saving
existing laws until altered or repealed by the new legis-
lature (e.g. Constitution Act of Victoria, 1855, section xL).

The effect of the Constitution upon certain existing laws
of the States has already been referred to in considering
the powers of the State Parliament in regard to Taxation,
and the provisions of section 117. The important words in
section 108 are " subject to this Constitution," and sections
114, 115, 117, and 118 make, or may make, certain existing
laws of the State of no eifect.

In general. State laws will remain in force after the
establishment of the Commonwealth, even though they
relate to matters which are within the exclusive power of
the Commonwealth Parliament. The various services which
are taken over by the Commonwealth, and which by section
52 are in the exclusive power of the Parliament, are taken
over with the State laws thereon : otherwise, there could be
no administration or control by the Commonwealth Execu-
tive, for some of them must, and all of them may, be trans-
ferred before the Commonwealth Parliament has had the
opportunity to provide for them. But the power of the
State Parliament to repeal or vary the laws saved is, like
the saving of these laws, " subject to this Constitution." It
is submitted that, where the Constitution has declared that
the Commonwealth Parliament shall have " exclusive power
to make laws," the State Parliament cannot alter or repeal
the laws in force, though The Parliament of the Common-
wealth has made " no provision in that behalf." The power
of the Parliament of the Colony, before such colony became
a State, to alter or repeal such laws included the power to
supplement them and to substitute others for them. If that
power is preserved, what is the exclusive power of the
Commonwealth Parliament ?

CHAPTER XIX.

NEW STATES AND TERRITORIES.

The Commonwealth of Australia starts on its career in
circumstances different from those of the United States or
of the Dominion of Canada, in that its territory is co-
terminous with the territory of the States, and that the
partition of the Continent amongst the members of the
Union leaves no part of it outside the federal system.
Some of the colonies, however, are of unwieldy size and
possess a vast unsettled territory, and it has been seen, in
the History of Federation, that the re-adjustment of
territory has been mooted from time to time. Thus, with
eyes on Western Australia and South Australia, it has
been suggested, that such colonies should consent to a
partition, which would place their unsettled and distant
territory in the hands of a central government for the
benefit of all Australia. Again, in the Colony of Queens-
land, separate and conflicting interests have been developed,
and have produced political conditions, which are believed
to require a division of that Colony into two or three
Colonies. The re-adjustment of the boundaries of New
South Wales and Victoria so as to include the Riverina m
the latter colony, the erection of a new Riverina colony,
and the claims of aggrieved areas for separation from an
unsympathetic capital, are among the political murmurings.
In a country as yet so sparsely settled as Australia, it is
improbable that the present political divisions are final.

NEW STATES AND TERRITORIES. 311

In these circumstances, there must be provision for the
surrender of territories to the Commonwealth, the re-
adjustment of existing States, and the erection of new
States, either by union or sub-division of existing States, or
by establishment out of territories which have been sur-
rendered to the Commonwealth.

But, as it is a fundamental principle of the union that
the " territories of the several existing colonies shall remain
intact," it is made clear that no State is to be deprived of
its territory for any of these purposes without its consent.
Two other matters must be remembered. There were
two colonies — Queensland and Western Australia — whose
present acceptance of federation was uncertain, and one —
New Zealand — which had for years dissociated itself from
the federal movement. It was considered, that the doubtful
colonies would be more likely to come in at the outset, if
they ran the risk of getting less favourable terms by delay.
Accordingly, the Act, unlike the Constitution of 1891, and
despite the protests of New Zealand at the London
Conference, distinguishes between Original States and
Colonies which may be subsequently admitted (section
vi.). Finally, it was recognized that the Commonwealth
might, like some of the colonies, have dependencies, and
that it might be entrusted by the Crown with the govern-
ment of dependent communities not included within the
territorial limits of Australia, Tasmania, or New Zealand.

These are the conditions for which provision is made in
chapter vi., somewhat misleadingly headed " New States."

Section 122 deals with what the marginal note calls the
" Government of territories," a term which is used, as in
the Constitution of the United States, to describe territory
and territorial communities, not forming part of any State,
but subject to the general government.

In the United States, the term " Territory " has also
connoted that the community in question was in a state of
political pupilage, and that in due course it would come to
maturity and be received as a State. Accordingly, it has
been customary to regard the seat of Government — the

312 NEW STATES AND TERRITORIES.

District of Columbia — as not included among the "terri-
tories/* and some difficulty has been felt as to the status of
the islands acquired by the United States from Spain,
islands whose condition hardly promises that they will
within any reasonable time become States.^

The Act by section vi. recognizes the term " Territories "
as describing a political status, and the Constitution in-
dicates the manner in which a territory may be constituted.
By section 111, the Parliament of a State may surrender
any part of the State to the Commonwealth, and, upon
acceptance, such part of the State becomes subject to the
exclusive jurisdiction of the Commonwealth. The Crown
may place under the authority of the Commonwealth any
colony or dependency outside the Commonwealth. For the
government of these, the Parliament may make provision
by section 122. In one important respect these territories
differ from the territories of the United States. In
America, the territories cannot return members to Congress,
though they are suffered to send delegates who may lay
their views before the legislature. The Commonwealth
Constitution enables the Parliament to allow the repre-
sentation of such territory in either House of The Par-
liament, to the extent and on the terms which it thinks fit.
There is another class of territory within the terms of
section 122 — territory "otherwise acquired" by the
Commonwealth. It is not improbable that this had some
reference to the power over "treaties," which was in the
earlier draft of the Constitution. But, as it stands, it
appears to refer to the seat of Government and all places
acquired by the Commonwealth for public purposes, which,
under section 52, are under the exclusive jurisdiction of
the Commonwealth, and therefore probably no longer part
of any State, so that their inhabitants enjoy political
privileges as citizens thereof.

So far as the government of the territories is concerned,

^ As to the meaning and status of Territories, see articles in the Harvard
Law Review, vol. xii. , by Professor Langdell, Mr. Randolph, and Professor
Baldwin.

NEW STATES. 313

the division of power between Federal and State govern-
ment of course does not exist ; any institutions, which may
be set up there, are the creation of The Parliament, in whom
lies the power of regulation and control. To them are
inapplicable the rights and duties cast upon States, hence
they stand, in the main, outside the provisions of the Con-
stitution— " the Constitution was made for the States, not
the territories," is true in the Commonwealth to the same
extent as in the United States. Thus, suits between a
resident in a State and a resident in a territory are not
within federal jurisdiction, and section 117 does not protect
residents in a territory against disabilities or discrimina-
tions in the States.

Of residents in the territories of the United States it is
said, that " the securities for personal liberty which are
incorporated in the Constitution were intended as limita-
tions of power over any and all persons within the
jurisdiction of the United States." But, as has been men-
tioned before, such securities are not to be found in the
Commonwealth Constitution. Section 116, however, is an
exception, and may fetter the power of The Parliament,
wherever that power is intended to operate. But the
suggested limitation in favour of personal liberty, even in
the United States, rests merely upon dicta}

NEW STATES.
By section 121 the Parliament may admit to the Com-
monwealth or establish New States. " Admit to the
Commonwealth" obviously relates to communities with-
out the Commonwealth, over which the Parliament has no
power, viz. Colonies such as New Zealand or Fiji. In this
class of case, the power of admission is, of course, subject to
the agreement of the community admitted, as signified by
the authority competent to act therefor. "To establish
New States" relates to communities within the Common-

^ See Cooley on Constitutional Law, p. 37 ; American Insurance Coy. v.
Canter (1828), 1 Peters 511 ; Loughborough v. Blake (1820), 5 Wheaton
317; Mormon Church v. U.S. (1889), 136 U.S. 1; American Publishing
Coy. V. Fisher, 166 U.S. 464.

314 NEW STATES AND TERRITORIES.

wealth, e.g. the territories, which it may be determined to
raise to the dignity of States (section 6 of the Act). It is
probable that The Parliament cannot convert the seat of
government, or places acquired for public purposes, into a
State. The power to convert a Territory into a State, or to
establish a State in a Territory, may be exercised by The
Parliament without the concurrence of any other authority.

By section 1 24, The Parliament may form a new State by
separation of territory from any State of the Common-
wealth, but only with the consent of the Parliament
thereof; or may form a new State by the union of two
or more States or parts of States, but only with the
consent of the Parliaments of the State affected.

In admitting or establishing new States, The Parliament
may make and impose such terms and conditions, including
the extent of representation in either House of The Parlia-
ment, as it thinks lit (section 121). Except so far as
otherwise agreed or determined, upon such admission or
establishment, the Constitution will apply to such new State.

ALTEEATION OF THE LIMITS OF STATES.

It has been seen, that the preservation of the territory of
the federating Colonies was a primary condition of the
union, and intercolonial suspicion led to this security being
sought in very remarkable terms.

Section 123 confers power upon The Parliament to
increase, diminish, or otherwise alter the limits of a State ;
but requires, that, for such alteration, as well as for the
arrangements incident thereto, the consent shall be obtained
not merely of the ordinary authority therein — the Parlia-
ment of the State — but of the electors of the State. The
result is very curious. The State Parliament may, without
any consent of Electors, diminish its territory ; for it is
expressly authorized by section 111 to surrender any part
of the State to the Commonwealth. The Commonwealth
Parliament may immediately transfer the territory so
surrendered to another State; but, in order to make the
transfer good, the Electors, as well as the Parliament of the

ALTERATION OF STATE BOUNDARIES. 315

State receiving the accession of territory, must assent to
the "increase" of "its limits." Again, by section 124, a
State, without any approval of Electors, may be cut asunder
and made into two or more States, or may lose its separate
existence altogether by union with another State — in either
case, no more than the concurrence of the State Parliament
and the Commonwealth Parliament is required.

It may be doubted, whether the powers referred to
exclude all other modes of dealing with the boundaries of
the States. The Colonial Boundaries Act, 1895, is not
applicable to the States (section viii. of the Act). But
there are several other statutory provisions affecting the
boundaries of the Australian Colonies, and it is by no
means clear, that they all merge in, and are extinguished by,
the provisions of the Commonwealth Constitution.^ Thus,
it may still be competent for the legislature of New South
Wales and Victoria, by laws passed in concurrence with each
other, to define in any manner different from that contained
in 18 and 19 Victoria, c. 54, the boundary line of the two
colonies along the course of the river Murray. Again, by
the 24 and 25 Victoria, c. 44, § 5, the Governors of con-
tiguous colonies on the Australian continent may, with the
advice of their Executive Councils, determine or alter the
common boundaries of such colonies, and, on the proclama-
tion of the Crown, such boundaries as altered shall become
the true boundaries of the colonies ; and, by section 6, pro-
vision is made for appointing the public debt, and making
other necessary arrangements on the rectification. And,
while it may be assumed, that the various provisions, en-
abling the Crown to establish new colonies in Australia by
separation from existing colonies, are either spent or repealed
by implication, it does not appear certain, that the power
of the Crown to annex portions of one colony to another
(as under the Western Australian Constitution Act, 1890,
section 6) is consumed and extinguished by the Constitution.

iSee 5 and 6 Vict., c. 76, § 51 ; 13 and 14 Vict., c. 59, §§ 30 and 34.
[These Acts are repeated as to N.S.W., Victoria, and Western Australia
by the Constitution Acts of these Colonies "so far as repugnant thereto."]
18 and 19 Vict., c. 54, §§ 5, 6, and 7 ; 24 and 25 Vict., c. 44, §§ 2, 5, and 6.

CHAPTER XX.

THE ALTERATION OF THE CONSTITUTION.

The spirit of federalism requires, that the federal part shall
not be at the mercy of the central government. Therefore,
in no federal system is the power of constitutional amend-
ment left in the principal organ of that government — the
federal legislature — save in the German Empire, where, how-
ever, the predominant Chamber — the Bundesrath — both in
its constitution and mode of action, is a perpetual memorial
of confederatism, and affords ample protection to State
rights. There may be, in the constitution itself, an organi-
zation of the state behind the government, or " the founders
of the polity may have deliberately omitted to provide any
means for lawfully changing its bases." A signal instance
of the latter course is to be found in the case of the
Dominion of Canada, where the fundamental provisions of
the British North America Act, 1867, are alterable only by
the Imperial Parliament.

In Australia, it was as necessary, as elsewhere, to establish
the federal system upon a basis, which should not be dis-
turbed by the legislature. But it was no less an object of
the founders of the Commonwealth to enlarge the power of
self-government. The existing colonies had the power
of amending their own Constitutions, the Commonwealth
must have the power of amending the Commonwealth
Constitution. One of the most difficult tasks, which the
Convention had to perform, was to devise a mode of amend-

MODE OF AMENDMENT. 317

ing the Constitution, which should make that instrument
sufficiently rigid to protect the rights of the several States,
to secure deliberation before action, and to discourage a
" habit of mending," which might become a " habit of
tinkering," but which should at the same time leave it
flexible enough to recognize, that development is as much a
law of state life as existence, and to harmonize with the
spirit of a people, with whom " majority rule " is the first
(and sometimes the only) principle of government, and who
have grown up under a political system, which knows little
more of the distinction between constituent and legislative
power than the British Constitution itself.

In no other matter was so much careful attention
bestowed upon the methods of other Constitutions, and on
the lessons to be gained from the experience of the United
States and Switzerland. The compromise ultimately adopted
is interesting, both from what it adopts, and from what it
rejects, of these models.^

The opening words of section 128 — " This Constitution
shall not be altered except in the following manner" —
make it clear, that there is no alternative method of amend-
ment, such as might otherwise perhaps have been considered
to belong to The Parliament under the Colonial Laws
Validity Act, 1865, and establish the provisions of the
section as mandatory and not merely directory.

The principles of Parliamentary government, of demo-
cracy, and of federalism, which run through the Constitu-
tion, are all recognized in section 128. The tradition of
Parliamentary Government and of Ministerial responsibility
leaves the sole initiation of amendments with either House

^ The American system of amendment is eulogized by Story {Commentaries
on the Constitution, §§ 1826-1831), and Judge Cooley {Constitutional Law, p.
218) speaks of the "simple, easy, and peaceful method" of modifying the
provisions of the Constitution. On the other hand, Professor Burgess
{Political Science and Constitutional Law, vol. i., pp. 150-154) criticizes the
Constitution for its overgreat rigidity. Mr. Bryce discusses the Amending
Power in The American Commonwealth, vol. 1. cap. xxxii. For the Swiss
system and its working, see Lowell's Governments and Parties in Continental
Europe, vol. 2.

318 THE ALTERATION OF THE CONSTITUTION.

of The Parliament, and neither the States Legislatures, as in
the United States, nor the electors, as in Switzerland, have
any direct means of setting the machinery to work. The
proposed law for the alteration of the Constitution must be
passed by an absolute majority of each House of Parliament,
a provision common to the Constitution Acts of the several
colonies, and distinguishing measures of constitutional
amendment in that one respect from ordinary legislation.
In providing merely for an absolute majority throughout
this clause and in section 57, the Constitution avoids the
reproach of the " excessively artificial majorities " required
for each stage in the amendment of the Constitution of the
United States: experience shows that the two- thirds majority
in each House of Congress, and the concurrence of three-
fourths of the States Legislatures, can rarely be obtained.
But not even the concurrence of the two Houses is
essential in the Commonwealth. In Switzerland, where
one Chamber of the Federal Assembly demands a revision
of the Constitution and the other will not agree thereto,
the question of revision or not is submitted to the electors,
and if a majority declares for revision, the Chambers of
the Legislature have to set themselves to the task. In
Australia, if one House rejects a proposed amendment passed
twice by the other with an interval of three months in
the same or the next session, the Governor-General may
submit the amendment to the electors for their approval.
The means provided by section 128, for dealing with
differences between the Houses on amendments of the
Constitution, are much simpler than those, in section 57,
relating to ordinary legislation. The reason is that ordi-
nary legislation is essentially a Parliamentary function,
and the reference to the people is made, only as a last
resort, after the failure of all other means of reconcilement.
Constitutional amendment, on the other hand, is a power
enjoyed by the people in the ordinary course, and not
merely as the arbiter between the Houses. It was the
people of the Colonies who adopted the Constitution —
it is the people who should amend. If they share the

REFERENDUM. 319

power with The Houses of the Parliament, it is as predomi-
nant partners. Another distinction between sections 57 and
128 must be noticed. Section 57 applies only to measures
originating in the House and rejected by the Senate, a
fact which, it has been observed, is significant of the parts
which they are respectively expected to play in legislation.
But the alteration of the federal bargain is a matter in
which the House of the States may well move : accordingly,
the "deadlock" provision of section 128 applies to pro-
posed laws originating in either House and rejected by the
other.

When a proposed law has passed the two Houses, it
has to be submitted in each State to the Electors, qualified
to vote for the election of Members of the House of Repre-
sentatives, not less than two nor more than six months
after its passage — times fixed to aflford sufiicient time for
the electors to inform themselves of the issue, and to
prevent undue delay.

It has been seen, that the Senate, as well as the House,
is unitary or national in action, in matters of constitutional
amendment, as well as in matters of ordinary legislation.
The federal principle received its recognition, as in the
Swiss Constitution, in the provisions relating to submission
to the electors — " If in a majority of the States a majority
of the electors voting approve the proposed law, and if
a majority of all the electors voting also approve the
proposed law, it shall be presented to the Governor-
General for the Queen's assent." There is to be a national
majority and a federal majority — a majority of the electors
of the Commonwealth who have recorded their votes, and a
majority of the States acting by their electors.

In determining the national majority, provision is made
for the fact that, so long as the electoral qualification is
governed by the laws of the States, and even after a
federal franchise is established by the Commonwealth
Parliament under the saving of section 41, the proportion
of electors to population in States, which have adopted
Woman's sufifrage, will be about double the proportion

320 THE ALTERATION OF THE CONSTITUTION.

in other States. Accordingly, it is provided that, "until
the qualification of the electors of members of the House of
Representatives becomes uniform throughout the Common-
wealth, only one half the electors voting for and against
the proposed law shall be counted in any State, in which
adult suffrage prevails."

Section 128, so far as we have considered it, provides
facilities for amendment not to be found in any other
federal constitution. But this facility has to be paid for
by the reservation of certain matters, for which an addi-
tional consent is required. By Article V. of the Consti-
tution of the United States, " no State, without its consent,
shall be deprived of its equal suffrage in the Senate."
As in the amendment of the Commonwealth Constitution,
the States have conceded more to the national principle
than have the States in America, the Constitution reserves
more matters for the special approval of the electors of
the State concerned. It provides, that " no alteration
diminishing the proportionate representation of any State
in either House of The Parliament, or the minimum number
of representatives of a State in the House of Representa-
tives, or increasing, diminishing, or otherwise altering
the limits of the State, or in any manner affecting the
provisions of the Constitution in relation thereto, shall
become law, unless the majority of the electors voting in
that State approve the proposed law."

There is no definition of an " alteration of the Constitu-
tion," but it is reasonable to conclude, that the term
"alteration" was used in preference to the more familiar
" amendment," in order to denote the widest power of
change, including the unlimited power of addition to the
instrument. Broadly, the powers of the Commonwealth,
as organized behind the Parliament, may be compared with
the powers of constitutional amendment possessed by the
representative legislatures of the colonies. All constitu-
tional alteration, like all ordinary legislation, must be " for
the Commonwealth," and no alteration of the Constitution
may be repugnant to any Imperial Act in operation in

EXTENT OF AMENDING POWER. 321

the Commonwealth, unless, expressly, or by implication,
power over such Act has been given by the Imperial
Parliament.

One Imperial Act, operating in the Commonwealth, over
which the Commonwealth has no power, is the Common-
wealth of Australia Constitution Act itself, from the
beginning to the introductory words of section ix. : " The
Constitution of the Commonwealth shall be as follows."
Some of these sections are spent, but others remain in
force. The Commonwealth is established in virtue of this
part of the Act, and it would appear to be dissoluble
only by Imperial Act — so far as the preamble may throw
light on the Act, it supports this view. The name of the
Commonwealth, and the operation of the Constitution, and
the laws of the Commonwealth throughout the Common-
wealth, are also fixed. " States " and " Original States "
are defined, and in as much as the Act speaks of union
in a " Federal Commonwealth," some doubt may be enter-
tained, whether anything may be done which destroys
the federal character. But the descriptive " Federal Com-
monwealth" is too vague, it is submitted, to be available
as a limitation of power; and, indeed, the Constitution itself,
by section 111 and chapter vi., provides means whereby
the dual system may be virtually extinguished, by dealings
between the Parliament and all the States, without any
resort to the provisions of section 128.

No part of " The Constitution " is withdrawn from the
power of the Commonwealth. Indeed, there is no doubt, that
the whole Constitution could be repealed under section 128,
and that without any provision being made to substitute
anything for it. A few years ago, the Home Rule pro-
posals of Mr. Gladstone gave great interest to the efiect
of surrenders of power by a sovereign body.^ It seems
an irresistible conclusion, that, as Professor Dicey {Law of
the Constitution, 5th edition, p. 65) says, " The impossibility

1 See article by Sir William Anson and Professor Dicey in the Law
Quarterly Review, vol. 2, and the speeches of Sir Henry James and Mr.
I James Bryce, Hansard's Debates, vol. 305.

X

322 TEE ALTERATION OF THE CONSTITUTION.

of placing a limit on the exercise of sovereignty does
not in any way prohibit, either logically, or in matter of
fact, the abdication of sovereignty."

The special provision, protecting the representation and
the territory of the States, presents some difficulties. Might
not the clause itself be repealed by the ordinary process of
constitutional alteration, thus leaving the road open for a
further alteration, diminishing the representation or the
territory ? To prevent such a course, from which — if we
might adopt the principles applicable to the Articles of
Companies and other Associations — the character of the
Constitution, as a compact, would not protect it, are added
the words, " or in any other manner affecting the provisions
of the Constitution relating thereto," the effect of which
appears to be to put the clause itself under the protection,
which is afforded by requiring the assent of the electors of
all the States affected.

It is to be observed, that the last clause of section 128
relates only to alterations of the Constitution. It is obvious,
that the "proportionate representation" of States, in one
sense of the term, will be affected by the operation of the
Constitution itself. Thus, every admission of a new State
with representatives in the Parliament diminishes the
proportion of the whole numbers of members returned by
any particular State to Senate and House. Again, the
natural increase of population will serve to increase the
representation of some States in the House, and diminish
that of others ; so that the " proportionate representation " of
a State, whether we regard that term as describing a relation
to the whole number, or a relation to the other States, will be
affected. But such a result is in accordance with the
Constitution, and it is only the mode by which this adjust-
ment is effected (section 24), which is protected by the last
clause of section 128.

Similar observations apply to the provisions concerning
the limits of States. We have seen, that the Constitution
confers several powers of affecting the States' limits. These
require the assent, or the action, of the State Parliament,

THE CONSENT OF PARTICULAR STATES.

323

and, in one case, the Electors of the State (section 123) ; and
there was some apprehension, that the integrity of States
territory might be invaded by an alteration of the Con-
stitution repealing the requirement of the consent of the
State. Accordingly, it is provided, that any such alteration
of the Constitution is valid, only with the consent of the
State to be affected. '

CHAPTER XXI.

CONCLUSION.

The Constitution of the Commonwealth of Australia con-
tains few evidences of that experimentalism, for which the
politics of the Colonies have become famous. Far fron\
disdaining precedent, the founders of the Constitution
availed themselves to the full of the opportunities, offered
by modern literature, for a comparison of existing Con-
stitutions ; and the Constitutions throughout bear the
impress of this study. The absence of any obvious cause
imperatively calling for immediate union, such as has in
every other instance of federal union determined action,
allowed her a singular freedom of choice in working from
her models.

The natural model for the union of a group of British
Colonies would have been the Dominion of Canada, which,
in its preamble, recites the desire of the Provinces to be
united into one Dominion "with a Constitution similar in*
principle to that of the United Kingdom." But the form
of Canadian union was determined by special circumstances,
both internal and external, very different from any which
exist in regard to Australia. In the first place the funda-
mental character of the Dominion — the possession of the
residuary power by the Dominion Legislature, and the
subordination of the Provinces to the Dominion Govern-
ment— was the natural outcome of the existing consolida-
tion of the Provinces of Upper and Lower Canada. Just in

FEDERALISM AND PARLIAMENT GOVERNMENT. 325

the same way, if the policy of " Home Rule " all round
were applied in the United Kingdom, we should expect to
find residuary power and some controlling power in the
Imperial Parliament and the Imperial Government. In the
second place, it must be remembered that the years 1864!-
1867, during which the Canadian Constitution was taking
shape, were years full of lessons from the neighbouring
union. The War of Secession had discredited the principles
of disintegration, upon which the Constitution of the United
States was based ; and the victorious States of the North
were engaged in re-establishing their Constitution upon a
basis, which greatly increased the central power, and might,
indeed, but for the restrictive interpretation of the Supreme
Court, have given to Congress a general controlling power
over the State.^

If the federalism of Australia is the federalism of the
United States and not that of Canada, the Parliamentary
Government, which England has given to her Colonies and
to Europe, is firmly rooted in the Constitution. That
Cabinet Government presents singular difficulties, as applied
to the federal system, is obvious, and, in 1891, there were
grave doubts whether it could be a durable institution even
in the single colonies. The great importance of administra-
tive capacity and experience, in such communities as
Australia, makes.it intolerable that affairs should be carried
on with the ever-shifting personnel supplied by Parlia-
mentary exigencies. But, since 1891, a great change has
come over the politics of Australia and New Zealand ; in
every colony, long tenure of office and stability of govern-
ment have superseded the kaleidoscopic movements of a
few years ago, and in Australia not less than in England,
men ask — Where and what is the Opposition ? There was
no more notable feature, in which the Convention of 1897-8
differed from the Convention of 1891, than in its un-
questioning acceptance of the Cabinet system.

The accomplishment of Australian Federation is not to
be regarded as an acceptance of any of the schemes of
^ See the Slaughter House Cases (1873), 16 Wallace 36.

326 CONCLUSION.

Imperial Federation, which have been or are in the air — the
\ j^ustralian Commonwealth is a measure " for enlarging the
power of self-government." But neither separation nor
republicanism is to be inferred from the fact, that the
federalism of Australia is that of the United States and not
that of Canada. To answer such a suggestion, it is not
necessary to do more than to point to the spirit of 1867-70,
both in England and the Colonies, and compare it with the
spirit of 1897-1900. In the earlier time, Sir John Mac-
donald and Mr. W. E. Forster stood almost alone, amongst
the statesmen of the Dominions of the Crown, in a belief in,
or even a hope for, the establishment of an enduring Empire
under the Crown, upon a basis of self-governing com-
munities. Now, every man, who wishes to vilipend another,
calls him a " Little Englander." When the Draft Bill of
1891 was under discussion, objection was often taken to its
Imperializing tendency. But little was made of such
objections in 1898-1899, though the vesting of power in the
Crown or the Governor-General excited sometimes appre-
hension of autocratic power amongst people, who were un-
acquainted with constitutional forms.

In the number and character of the matters assigned to
the Federal Parliament, the Australian Constitution follows
the Dominion of Canada rather than the United States.
The Fathers of the American Constitution, Mr. Bryce says,
" had no wish to produce uniformity amongst the States in
government or institutions, and little care to protect the
citizens against abuses of State power. Their chief aim
was to secure the National Government against encroach-
ments on the part of the States, and to prevent causes of
quarrel, both between the central and State authorities, and
between the several States."^ But, in the 19th century,
distance has been constantly shrinking, and divergence of
laws and institutions, in two great countries whose in-
habitants have perpetual intercourse, is to-day infinitely
more inconvenient than the divergences of custom in
neighbouring localities a few centuries ago. The century
^ Bryce, American Commonwecdthy vol. i., p. 423.

AUSTRALIAN DEMOCRACY. 327

has seen the growth of a whole body of law for the settle-
ment of the conflict of laws and jurisdictions, but it is
obviously simpler, and more convenient, to go to the root of
the matter, and establish a uniform law under a central
government. Hence the great national states, which the
political movements of the century have called into exis-
tence, have made "the law," to a great extent, a national
law. In Germany, there is a high degree of legal central-
ization ; the legislative power of the Empire extends over
the whole domain of ordinary civil and criminal law, and
this power has recently given a uniform code of laws for
the Empire. Canada was quite alive to the defects of the
United States system in respect to the criminal and private
law, and, accordingly, vested in the Dominion Parliament
power over criminal law and procedure, over the laws of
marriage and divorce, and over a large part of commercial
law. Australia has shown even greater anxiety than
Canada for uniformity of law ; for, though criminal law is
not made a Commonwealth matter, the Commonwealth
Parliament has wider powers over family and commercial
law than has the Dominion Parliament. But neither in
Canada nor in Australia do we find the legal centralization
of Germany.

The predominant feature of the Australian Constitution
is the prevalence of the democratic principle, in its most
modern guise.

It is true, that, in a federal government, the simple
democratic plan of pure majority rule must make compro-
mises with the principle of State right. But that is
the only compromise which it makes in Australia. The
federalism of Australia is the federalism of the United
States ; her democracy is her own. The American Consti-
tution was jbom in distrust. To possess power, was to
abuse it ; therefore, in devising the organs of Government,
the first object was, less to secure their co-operation, than to
ensure that each might be a check upon the natural
tendencies of the other. Large states, where the central
power is far ofi", were more dangerous to liberty than

328 CONCLUSION.

small states, where popular control was more readily
exerted ; therefore, central power was to be no greater than
was absolutely necessary for security against external
attack and internal dissension. And the maxim, " Trust in
the People," carried the Fathers of the Constitution but
a little way on the democratic road. Direct participation
by the people in the ordinary functions of central govern-
ment seemed equally impracticable and mischievous. The
people could, at most, be choosers, and, even here, they
were to act at second-hand; there was to be a College
of Electors, who should exercise a free judgment in the
choice of a President; the Senators were to be chosen
by the Legislatures of the States. Thus, the most im-
portant offices in the Union were to be filled without the
pressure of popular clamour. The Constitution was ac-
cepted not by direct vote, but by State Conventions, and
amendments were to be approved either by the States
Legislatures or by States Conventions. The Constitution
of the Commonwealth of Australia bears every mark
of confidence in the capacity of the people to undertake
every function of government. In the Constitution of
the Parliament, in the relations of the Houses, and in
the amendment of the Constitution, the people play a
direct part. There are no intermediaries in the formation
of the Senate; the electors are the arbiters between the
Houses ; there are no conventions of select men to approve
alterations of the Constitution. The artificial majorities of
the American Constitution are not required. The system,
governing the qualifications of members and electors, is
dictated by a desire to rest those qualifications upon the
widest possible basis.

In one notable matter, the Australian Constitution
difiers markedly from that of the United States. In
America, the checks and balances devised by the Fathers
of the Constitution were deemed an insufficient restraint of
power, and were immediately supplemented by a compre-
hensive Bill of Rights, which placed the liberties of the
citizen under the protection of the Constitution, and

INDIVIDUAL RIGHTS. 329

secured them against any attack by the Federal Govern-
ment. More remarkable still in a federal constitution,
there were a few provisions protecting the rights of the
citizens of the States against their own States Govern-
ment. It need hardly be said, that this spirit of distrust
has so grown that the States Constitutions put many and
varied rights of the citizen beyond the reach of the legisla-
ture, and that the amendments of the Federal Constitution
which followed the War of Secession afford further
security to individual right. From the Australian Consti-
tution such guarantees of individual right are conspicuously
absent. When the Constitution left the Adelaide Con-
vention, it provided, that no State should make any law
prohibiting the free exercise of any religion (section 109,
Adelaide draft), and that a State should not deny to any
person within its jurisdiction the equal protection of its
laws (section 40). These provisions, however, disappeared,
and every restraint imposed by the Constitution upon
Commonwealth Parliament or State (except the provisions
of section 116), may be referred to federal needs. When
it was found, that the section, prescribing uniformity of
Commonwealth taxation, might be read to protect indi-
viduals or classes against discrimination, care was taken
to substitute words of geographical description. The great
underlying principle is, that the rights of individuals are
sufficiently secured by ensuring, as far as possible, to
each a share, and an equal share, in political power.

As a federal system is deemed to be favourable to
political experiments, there is no reason to suppose that
the States in Australia will be less daring than the
Colonies have been, in the adoption of "progressive
measures." It has been noticed, that the apathy of a
class, which ordinarily gives a more continuous attention
to politics than any other in Australia, was due to the
fact, that the earlier programme of federation did not deal
directly with any matter of " social and industrial reform."
It follows, that the matters, on which modern legislation
experiments, remain almost without exception in the

330 CONCLUSION.

exclusive power of the States. The exceptions have been
referred to — invalid and old-age pensions, and conciliation
and arbitration for the prevention and settlement of indus-
trial disputes extending beyond the limits of any one State.

Mr. Bryce has pointed out, that local self-government
and federalism are distinct, and that it is perfectly possible
to have a very high degree of centralization in a federal
community.^ Australia is a signal illustration of this
truth. Notwithstanding the extensive powers of the
Commonwealth Government, the States are capable of
exercising most of the powers of sovereignty, and these
extensive powers are exerciseable over vast areas, inhabited
in some cases by a million of people, and capable in some
cases of sustaining a population infinitely greater. As
Mr. Bryce observes, the sort of local interest which local
self-government evokes, and the sort of control which
a township can exercise, is quite a different thing from the
interest men feel in the affairs of a large body like a
State, and the control exerciseable over the affairs of a
community with a million of people. In the Colonies of
Australia, such local government as there was, was estab-
lished by the central authority, and existed as a highly
artificial, and not very robust, product. In addition to
undertaking many of the functions, which elsewhere belong
to local governments, the central government also concerned
itself with works, which, in other lands, fell to private hands.
Thus, there existed all the conditions of a highly centralized
government, and the mere transfer of some of the functions
of the several States to a single authority is, of course, not
a step towards decentralization. For some time, the States
of Australia must be classed with the States characterized
by the centralization of powers.

As to the future of the Federal Constitution, it has been
seen that, by the adoption of so flexible a system as that of
Cabinet Government, and by the provision of an ex-
ceedingly facile mode of amendment, the founders of the
Constitution have left ample scope for development.

^ Bryce, American Commonwealth^ vol. i., p. 466.

POWER OF CENTRAL GOVERNMENT. 331

Doubtless, the Cabinet system, as applied to Federal
Government, will develop new conventions and under-
standings, affecting both the constitution of Ministries and
the relations of the Houses of the Parliament. It has been
remarked, that, in America, federalism acts injuriously upon
the filling of public offices, since, in addition to considering the
claims of individuals, it is necessary to placate the States by
making some attempt at a fair distribution of offices amongst
them. Already there are indications, that, in Australia, the
same tendency will be at work to restrict choice.

It is the experience of Federal Government in the United
States, in Germany, and in Switzerland, that, with or
without any amendment of the constitutional law, the
national government grows in power. If, in Canada, the
provincial power has been found to be greater than was
contemplated by the founders of the Constitution, it must
be remembered, that this has been the outcome of inter-
pretation by an external tribunal — the Privy Council —
rather than the course of natural development in Canada,
and that the liberal view, which has been taken of the
power of the Province, has been greatly aided by the fact,
that the Dominion Executive has a controlling power
enabling it to check the abuse of provincial power. In
Australia the great and numerous powers conferred upon
the Commonwealth Government may for a considerable
time be deemed sufficient, yet the very extent of power is
one great fact which makes for increase.

In the United States, and in Canada, the development of
the Constitution has been, less by formal amendment, than
in the way of judicial decision. It has been abundantly
shown in the United States, that the Constitution is a
thing of life, with a marvellous capacity for adaptation to
the ever-changing needs of the most progressive people of
a progressive age, and the process of adaptation has almost
uniformly resulted in the increase of the powers of the
central government. Had there not been this power of
adaptation, the Constitution would have been a serious
obstacle to the work of nation-building; for the power of

332 CONCLUSION.

formal amendment is far too cumbrous a machine for
every-day needs.

The great facility, with which the Australian Constitution
may be altered, makes it probable, that its development
will be guided, less by judicial interpretation, and more by
formal amendment, than the development of the Constitu-
tion of the United States. It may be expected, too, that
the Courts will construe the Constitution in a stricter spirit
than has been common in America. They are not likely
to lose sight of Marshall's warning : ^ " We must not forget
that it is a Constitution we are expounding"; nor will they
forget, that, in the interpretation of an instrument of
government, there must be " the combination of a lawyer's
rigour with a statesman's breadth of views." But the
most important judgments of the Supreme Court of the
United States have been given under a deep sense that
their construction was for all practical purposes final, and
that the amending power was not available to mitigate the
efiects of their decision. The Australian Constitution is
born in an age of legislation, and Courts will be more free
to say, as to the Constitution, what they frequently say as
to ordinary statutes — " It is our duty merely to declare
what seems to us to be the law. If we are wrong, or if
the consequences of the law as so declared are mischievous,
the law can be altered." So great indeed are the facilities
offered by section 128 for altering the Constitution, that
very competent expositors ^ have suggested, that, in the
event of a difference between the Houses, it may be more
convenient to pass ordinary legislation as an alteration of
the Constitution under section 128, than to resort to the
more elaborate " deadlock " machinery of section 57. Such
a course may be possible, but, if it is adopted, it will lead to
a " habit of tinkering " with the Constitution, which will
give that instrument a portion in the national polity, very
difierent from that, which has been won by its great proto-
type, the Constitution of the United States.

1 M'Cvlloch V. Maryland (1819), 4 Wheaton 316.

2 Mr. J. A. Isaacs (Attorney-General for Victoria) and Mr. J. E. Mackey,
Melbourne Age, Monday, July 10th, 1899.

AN ACT TO CONSTITUTE THE COMMONWEALTH
OF AUSTRALIA, a.d. 1900.

L

THE COMMONWEALTH ACT.

AN ACT TO CONSTITUTE THE COMMONWEALTH

OF AUSTEALIA. a.d.i90o.

[Qth July, 1900.]
Whereas the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, humbly relying on the
blessing of Almighty God, have agreed to unite in one indissoluble
Federal Commonwealth under the Crown of the United Kingdom
of Great Britain and Ireland, and under the Constitution hereby
established : And whereas it is expedient to provide for the
admission into the Commonwealth of other Australasian Colonies
and possessions of the Qtieen : Be it therefore enacted by the
Queen's Most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority of the
same, as follows :

I. This Act may be cited as the Commonwealth of Australia Short title.
Constitution Act. (78.) ^

II. The provisions of this Act referring to the Queen shall Act to extend
extend to Her Majesty's Heirs and Successors in the Sovereignty succesErr"^
of the United Kingdom. (63.)

HI. It shall be lawful for the Queen, with the advice of the Proclamation of
Privy Council, to declare by Proclamation that, on and after a day Commonwealth,
therein appointed, not being later than one year after the passing
of this Act, the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, and also, if Her Majesty is
satisfied that the people of Western Australia have agreed thereto,
of Western Australia, shall be united in a Federal Commonwealth
under the name of the Commonwealth of Australia, But the
Queen may, at any time after the Proclamation, appoint a
Governor- General (230) for the Commonwealth.

IV. The Commonwealth shall be established, and the Constitu- Commencement
tion of the Commonwealth shall take effect, on and after the day so °^ ^^^'
appointed. But the Parliaments of the several Colonies may at

any time after the passing of this Act make any such laws, to come
into operation on the day so appointed, as they might have made if
the Constitution had taken effect at the passing of this Act.

V. This Act, and all laws made by the Parliament of the Com- Operation of the
mon wealth under the Constitution, shall be binding on the Courts, and laws. ^^"^
Judges, and people of every State, and of every part of the
Commonwealth, notwithstanding anything in the laws of any

State (81) ; and the laws of the Commonwealth shall be in force
on all British ships, the Queen's ships of war excepted, whose first

334 THE COMMONWEALTH ACT.

port of clearance and whose port of destination are in the Common-
wealth. (63, 65, 134, 170.)
Definitione. VI. "The Commonwealth" shall mean the Commonwealth of

Australia as established under this Act.

"The States" shall mean such of the Colonies of New South
Wales, New Zealand, Queensland, Tasmania, Victoria, Western
Australia, and South Australia, including the Northern Territory
of South Australia, as for the time being are parts of the Common-
wealth, and such Colonies or Territories (63, 311) as may be
admitted into or established by the Commonwealth as States
(314) ; and each of such parts of the Commonwealth shall be
called a " State."

"Original States" (311) shall mean such States as are parts of

the Commonwealth at its establishment. (63, 68, 170.)

Repeal of VII. The Federal Council of Australasia Act, 1885, is hereby

Federal Council ^epe^ig^j (159); but SO as not to aflfect any laws passed by the

48 & 49 Vict., Federal Council of Australia and in force at the establishment of

•c. 60.

the Commonwealth.

Any such law may be repealed as to any State by the Parliament

of the Commonwealth, or as to any colony not being a State by the

Parliament thereof. (63.)
Application of VIII. After the passing of this Act the Colonial Boundaries Act,
Boundaries Act, 1895, shall not apply to any colony (315) which becomes a State
c^S.^^^'''*" of the Commonwealth; but the Commonwealth shall be taken to

be a self-governing colony for the purposes of that Act. (63,

168.)
IX. The Constitution of the Commonwealth shall be as follows

A,D. liioo. (79) :
^Constitution. THE CONSTITUTION.

This Constitution is divided as follows : —

Sees.
Chapter I. — ^The Parliament.

Part I.— General, ...... i- 6

Part TI.— The Senate, 7-23

Part III. — The House of Representatives, - - 24-40

Part IV.— Both Houses of the Parliament, - - 41-50

Part V. — Powers of the Parliament, - - - 51-60

Chapter II. — The Executive Government, - - - 61-70

Chapter III.— The Judicature, 71-80

Chapter IV.— Finance and Trade, ... - 81-105

Chapter V.— The States, 106-120

Chapter VI.— New States, 121-124

Chapter VII.— Miscellaneous, 125-127

Chapter VIII. — Alteration of the Constitution, - - 128

The Schedule.

THE COMMONWEALTH ACT. 335

CHAPTER I. Chapter I.

THE PARLIAMENT. Parm!mbnt.

Part I.

Part I. — General. General.

1. The legislative power of the Commonwealth shall be vested Legislative
in a Federal Parliament (82), which shall consist of the Queen,

a Senate, and a House of Representatives (92), and which is
hereinafter called "The Parliament," or "The Parliament of the
Commonwealth."

2. A Governor-General appointed by the Queen shall be Her Governor-
Majesty's representative (74, 93) in the Commonwealth, and shall

have and ma}"^ exercise in the Commonwealth during the Queen's
pleasure, but subject to this Constitution, such powers and
functions of the Queen as Her Majesty may be pleased to assign
to him. (92, 96, 218.)

3. There shall be payable to the Queen out of the Consolidated Salary of
Revenue Fund of the Commonwealth, for the salary of the General.
Governor-General, an annual sum which, until the Parliament
otherwise provides, shall be Ten thousand pounds. (190.)

The salary of a Governor-General shall not be altered during his
continuance in office. (93.)

4. The provisions of this Constitution relating to the Governor- a.d. 1900.
General extend and apply to the Governor-General for the time relating to
being, or such person as the Queen may appoint to administer the Qenerai^^
Government of the Commonwealth ; but no such person shall be
entitled to receive any salary from the Commonwealth in respect

of any other office during his administration of the Government of
the Commonwealth. (93.)

5. The Governor-General may appoint such times for holding the Sessions of

sessions of the Parliament as he thinks fit, and may also from time

to time, by Proclamation or otherwise, prorogue the Parliament, Prorogation and
, . ,.- -,. 1 , -TT o -r^ . dissolution.

and may m like manner dissolve the House of Representatives.

(94.)

After any general election the Parliament shall be summoned to Summoning
° Parliament,

meet not later than thirty days after the day appointed for the

return of the writs. (94.)

The Parliament shall be summoned to meet not later than six First session.

months after the establishment of the Commonwealth. (94.)

6. There shall be a session of the Parliament once at least in Yearly session

. of Parliament,

every year, so that twelve months shall not intervene between the

last sitting of the Parliament in one session and its first sitting in

the next session. (90, 94.)

336

f

THE COMMONWEALTH ACT

Part II.
The Senatk.

The Senate.

Qualification
of electors.

A.D. 1900.

Method of
election of
senators.

Times and
places.

Application of
State laws.

Failure to choose
senators.

Issue of writs.

Part II. — The Senate.

7. The Senate shall be composed of senators for each State,
directly chosen by the people of the state (99, 102), voting, until
the Parliament otherwise provides, as one electorate. (98.)

But until the Parliament of the Commonwealth otherwise
provides, the Parliament of the State of Queensland, if that State
be an Original State, may make laws dividing the State into
divisions and determining the number of senators to be chosen for
each division, and in the absence of such provision the State shall
be one electorate. (98.)

Until the Parliament otherwise provides there shall be six
senators for each Original State. The Parliament may make laws
increasing or diminishing the number of senators for each State,
but so that equal representation of the several Original States
shall be maintained and that no Original State shall have less than
six senators. (98, 103.)

The senators shall be chosen for a term of six years, (99) and
the names of the senators chosen for each State shall be certified
by the Governor to the Governor-General.

8. The qualification of electors of senators shall be in each State
that which is prescribed by this Constitution, or by the Parliament,
as the qualification for electors of members of the House of
Kepresentatives (106) ; but in the choosing of senators each
elector shall vote only once. (99, 106, 108.)

9. The Parliament of the Commonwealth may make laws pre-
scribing the method of choosing senators, but so that the method
shall be uniform for all the States (100). Subject to any such
law, the Parliament of each State may make laws prescribing the
method of choosing the senators for that State. (100.)

The Parliament of a State may make laws for determining the
times and places of elections (284) of senators for the State.
(100.)

10. Until the Parliament otherwise provides, but subject to this
Constitution, the laws in force in each State, for the time being,
relating to elections for the more numerous House of the Parliament
of the State shall, as nearly as practicable, apply to elections of
senators for the State. (100.)

11. The Senate may proceed to the despatch of business, notwith-
standing the failure of any State to provide for its representation
in the Senate. (98.)

12. The Governor of any State may cause writs to be issued for
elections of senators for the State. In case of the dissolution of
the Senate the writs shall be issued within ten days from the
proclamation of such dissolution. (100.)

THE COMMONWEALTH ACT 337

13. As soon as may be after the Senate first meets, and after Rotation of
each first meeting of the Senate following a dissolution thereof ^

(99), the Senate shall divide the senators chosen for each State
into two classes, as nearly equal in number as practicable ; and the
places of the senators of the first class shall become vacant at the
expiration of the third year (99), and the places of those of .^
the second class at the expiration of the sixth year, from the
beginning of their term. of service; and afterwards the places of
senators shall become vacant at the expiration of six years from
the beginning of their term of service.

The election to fill vacant places shall be made in the year at the
expiration of which the places are to become vacant.

For the purposes of this section the term of service of a senator
shall be taken to begin on the first day of January following the
day of his election, except in the cases of the first election and of
the election next after any dissolution of the Senate, when it shall
be taken to begin on the first day of January preceding the day of
his election.

14. Whenever the number of senators for a State is increased or Further
diminished, the Parliament of the Commonwealth may make such KtaUon!^ °^
provision for the vacating of the places of senators for the State as

it deems necessary to maintain regularity in the rotation. (99.)

15. If the place of a senator becomes vacant before the expiration Casual vacancies
of his term of service, the Houses of Parliament of the State for

which he was chosen shall, sitting and voting (125) together,
choose a person to hold the place until the expiration of the term,
or until the election of a successor as hereinafter provided, which-
ever first happens (99). But if the Houses of Parliament of the
State are not in session at the time when the vacancy is notified,
the Governor of the State, with the advice of the Executive
Council (286) thereof, may appoint a person to hold the place
until the expiration of fourteen days after the beginning of the
next session of the Parliament of the State, or until the election
of a successor, whichever first happens, (100.)

At the next general election of members of the House of Eepre-
sentatives, or at the next election of senators for the State, which-
ever first happens, a successor shall, if the term has not then expired,
be chosen to hold the place from the date of his election until the
expiration of the term. (100.)

The name of any senator so chosen or appointed shall be certified
by the Governor of the State to the Governor-General. (99.)

16. The qualifications of a senator shall be the same as those of Qualifications of
a meiliber of the House of Eepresentatives. (99, 105, 110.)

17. The Senate shall, before proceeding to the despatch of any Election of

to
Y

other business, choose a senator to be the President of the Senate ; ^

OF THE

UNIVPf?v?JTv

338

THE COMMONWEALTH ACT.

Absence of
President.

Resignation of
senator.

Vacancy by
absence.

Vacancy to be
notified.

Quorum.

Voting in
Senate.

and as often as the Office of President becomes vacant the Senate
shall again choose a senator to be the President. (100.)

The President shall cease to hold his office if he ceases to be a
senator. He may be removed from office by a vote of the Senate,
or he may resign his office or his seat by writing addressed to the
Governor-General. (100.)

18. Before or during any absence of the President, the Senate
may choose a senator to perform his duties in his absence.

19. A senator may, by writing addressed to the President, or to
the Governor-General if there is no President or if the President
is absent from the Commonwealth, resign his place (100), which
thereupon shall become vacant.

20. The place of a senator shall become vacant if for two
consecutive months of any session of the Parliament he, without
the permission of the Senate, fails to attend the Senate. (100.)

21. Whenever a vacancy happens in the Senate, the President,
or if there is no President or if the President is absent from the
Commonwealth, the Governor-General shall notify the same to the
Governor of the State in the representation of which the vacancy
has happened. (99.)

22. Until the Parliament otherwise provides, the presence of at
least one-third of the whole number of the senators shall be
necessary to constitute a meeting of the Senate for the exercise of
its powers. (98.)

23. Questions arising in the Senate shall be determined by a
majority of votes, (98) ; and each senator shall have one vote
(98). The President shall in all cases be entitled to a vote
(100) ; and when the votes are equal the question shall pass in
the negative. (100.)

Part III.
House of

representa- Part III. — The House of Eepresentatives.

TIVES.

Constitution of 24. The House of Eepresentatives shall be composed of members
Representativesf directly chosen by the people of the Commonwealth (102), and the
number of such members shall be, as nearly as practicable, twice the
number of the senators. (102.)

The number of members chosen in the several States shall be in
V proportion to the respective numbers of their people (102), and
shall, until the Parliament otherwise provides, be determined, when-
ever necessary, in the following manner : —

I. A quota shall be ascertained by dividing the number of the
people of the Commonwealth, as shown by the latest
statistics of the Commonwealth, by twice the number of
the senators. (102.)

THE COMMONWEALTH ACT 339

II, The number of members to be chosen in each State shall be
determined by dividing the number of the people of the
State, as shown by the latest statistics of the Common-
wealth, by the quota ; and if on such division there is a
remainder greater than one-half of the quota, one more
member shall be chosen in the State. (102.)

But notwithstanding anything in this section, five members at least

shall be chosen in each Original State.

25. For the purposes of the last section, if bv the law of any State Provision as to
all persons of any race are disqualified from voting at elections for quaUfied from
the more numerous House of the Parliament of the State, then in ^** "^^"
reckoning the number of the people of the State or of the Common- ^
wealth, persons of that race resident in that State shall not be

counted. (102.)

26. Notwithstanding anything in section twenty-four, the num- Repi-esentatives
ber of members to be chosen in each State at the first election shall Parliament.

be as follows :

New South Wales, - - - - Twenty-three ;

Victoria, Twenty;

Queensland, ----- Eight;
South Australia, . - . - Six ;

Tasmania, Five;

Provided that if "Western Australia is an Original State, the num-
bers shall be as follows : —

New South Wales, - - - - Twenty-
Victoria, - Twenty-
Queensland, Nine;

South Australia, - - - - Seven ;
Western Australia, - - - - Five;
Tasmania, Five. (103.)

27. Subject to this Constitution, the Parliament may make laws Alteration of
for increasing or diminishing the number of the members of the m"mbers°
House of Representatives. (103.)

28. Every House of Representatives shall continue for three years Duration of
from the first meeting of the House, and no longer, but may be Representatives,
sooner dissolved by the Governor-General. (104.)

29. Until the Parliament of the Commonwealth otherwise pro- Electoral
vides, the Parliament of any State may make laws for determining

the divisions in each State for which members of the House of
Representatives may be chosen, and the number of members to be
chosen for each division (103). A division shall not be formed
out of parts of difi'erent States. (104.)

In the absence of other provision, each State shall be one elec-
torate. (104.)

340 THE COMMONWEALTH ACT.

QuaUfication of 30. Until the Parliament otherwise provides (106, 108), the

qualification of electors of members of the House of Representatives.

shall be in each State that which is prescribed by the law of the

^ State as the qualification of electors of the more numerous House of

Parliament of the State (106); but in the choosing of members

each elector shall vote only once. (106, 108, 109.)

Application of 31. Until the Parliament otherwise provides, but subject to this.
State laws . . .

Constitution, the law in force in each State for the time being

relating to elections for the more numerous House of the Parlia-
ment of the State shall, as nearly as practicable, apply to elections,
in the State of members of the House of Representatives. (105.)
Writs for general 32. The Governor-Geiieral in Council may cause writs to be-
issued for general elections of members of the House of Representa-
tives. (104.)

After the first general election, the writs shall be issued within
ten days from the expiry of a House of Representatives, or from the
proclamation of a dissolution thereof. (104.)
Writs for 33. Whenever a vacancy happens in the House of Representatives,,

vacancies. ^^^ Speaker shall issue his writ for the election of a new member,

or if there is no Speaker, or if he is absent from the Commonwealth,
the Governor-General in Council may issue the writ. (105.)
Qualifications of 34. Until the Parliament otherwise provides, the qualifications of
mem ers. ^ member of the House of Representatives shall be as follows : —

I. He must be of the full age of twenty-one years, and must be

an elector entitled to vote at the election of members of the

House of Representatives, or a person qualified to become

such elector, and must have been for three years at the

least a resident within the limits of the Commonwealth as

existing at the time when he is chosen. (110.)

II. He must be a subject of the Queen, either natural-born or

for at least five years naturalized under a law of the

United Kingdom, or of a Colony which has become or

becomes a State, or of the Commonwealth or of a State.

(109, 110.)

Election of 35. The House of Representatives shall, before proceeding to the

pea er. despatch of any other business, choose a member to be the Speaker

of the House, and as often as the ofiice of Speaker becomes vacant

the House shall again choose a member to be the Speaker. (105.)

The Speaker shall cease to hold his office if he ceases to be a
member. He may be removed from office by a vote of the House,
or he may resign his office or his seat by writing addressed to the
Governor-General. (105.)
Absence of 36. Before or during any absence of the Speaker, the House of

^* ^^' Representatives may choose a member to perform his duties in his.

absence.

' THE COMMONWEALTH ACT. 341

37. A member may by writing addressed to the Speaker, or to the Resignation of
Oovernor-General if there is no Speaker, or if the Speaker is absent ™^™ *'"*
from the Commonwealth, resign his place, which thereupon shall

become vacant. (105.)

38. The place of a member shall become vacant if for two con- Vacancy by
secutive months of any session of the Parliament he, without the
permission of the House, fails to attend the House. (105.)

39. Until the Parliament otherwise provides, the presence of at Quorum,
least one-third of the whole number of the members of the House of
Eepresentatives shall be necessary to constitute a meeting of the
House for the exercise of its powers. (104.)

40. Questions arising in the House of Eepresentatives shall be Voting in House
determined by a majority of votes other than that of the Speaker. tivesT^

The Speaker shall not vote unless the numbers are equal, and then
he shall have a casting vote. (105.)

A.D. 1900.

Part IV.

Both Houses

Part IV. — Both Houses of the Parliament. ofThb

Parliambnt.

41. No adult person who has or acquires a right to vote at elec- Right of electors
tions for the more numerous House of the Parliament of a State, ^

shall, while the right continues, be prevented by any law of the
Commonwealth from voting at elections for either House of the
Parliament of the Commmonwealth. (108, 109, 110, 319.)

42. Every senator and every member of the House of Representa- Oath or
tives shall before taking his seat make and subscribe before the allegiance.
Oovernor-General, or some person authorized by him, an oath or
affirmation of allegiance in the form set forth in the Schedule to

this Constitution. (113.)

43. A member of either House of the Parliament shall be Member of one
incapable of being chosen or of sitting as a member of the other for other.
House. (111.)

44. Any person who — Disqualification.
I. Is under any acknowledgment of allegiance, obedience, or

adherence to a foreign power, or is a subject or a citizen
or entitled to the rights or privileges of a subject or a
citizen of a foreign power (111) : or

II. Is attainted of treason, or has been convicted and is under
sentence, or subject to be sentenced, for any offence
punishable under the law of the Commonwealth or of a
State by imprisonment for one year or longer (111) : or

HI. Is an undischarged bankrupt or insolvent (112) : or

IV. Holds any office of profit under the Crown, or any pension
payable during the pleasure of the Crown out of any of
the revenues of the Commonwealth (112) : or

v. Has any direct or indirect pecuniary interest in any agree-

342

THE COMMONWEALTH ACT.

A.D. 1900.
Vacancy on
happening of
disqualification.

Penalty for
sitting when
disqualified.

Disputed
elections.

Allowance to
members.

Privileges, etc.
of Houses.

ment with the public service of the Commonwealth »
otherwise than as a member and in common with the
other members of an incorporated company consisting of
more than twenty-five persons (112) :
shall be incapable of being chosen or of sitting as a senator (112)
or a member of the House of Eepresentatives. (112.)

But sub-section iv. does not apply to the office of any of the
Queen's Ministers of State for the Commonwealth (215, 226),
or of any of the Queen's Ministers for a State (215), or to the
receipt of pay, half-pay, or a pension by any person as an officer or
member of the Queen's navy or army, or to the receipt of pay as
an officer or member of the naval or military forces of the
Commonwealth by any person whose services are not wholly
employed by the Commonwealth. (112.)

45. If a senator or member of the House of Representatives —

I. Becomes subject to any of the disabilities mentioned in the

last preceding section : or I

II. Takes the benefit, whether by assignment, composition, or I
otherwise, of any law relating to bankrupt or insolvent-
debtors : or

III. Directly or indirectly takes or agrees to take any fee or

honorarium for services rendered to the Commonwealth,

or for services rendered in the Parliament to any person

or State :

his place shall thereupon become vacant. (101, 112.)

46. Until the Parliament otherwise provides, any person declared'
by this Constitution to be incapable of sitting as a senator or as a
member of the House of Representatives shall, for every day on
which he so sits, be liable to pay the sum of one hundred pounds-
to any person who sues for it in any court of competent jurisdic-
tion. (112.)

47. Until the Parliament otherwise provides, any question
respecting the qualification of a senator or of a member of the
House of Representatives, or respecting a vacancy in either House
of the Parliament, and any question of a disputed election to either
House, shall be determined by the House in which the question
arises. (113.)

48. Until the Parliament otherwise provides, each senator and
each member of the House of Representatives shall receive an
allowance of Four hundred pounds a year (192), to be reckoned
from the day on which he takes his seat. (113.)

49. The powers, privileges, and immunities of the Senate and
of the House of Representatives, and of the members and the
committees of each House, shall be such as are declared by the
Parliament, and until declared shall be those of the Commons

THE COMMONWEALTH ACT. 343

House of Parliament of the United Kingdom, and of its members
and committees, at the establishment of the Commonwealth.
(114.)

50. Each House of the Parliament may make rules and orders Rules and
.^, , , ' orders.

With respect to :

I. The mode in which its powers, privileges, and immunities

may be exercised and upheld :
II, The order and conduct of its business and proceedings either
separately or jointly with the other House. (115.)

A.D, 1900.
Part V.

Part V. — Powers of the Parliament. Powers of The

Parliament.

51. The Parliament shall, subject to this Constitution, have Legislative

1 1 /. 1 1 11 ^1- powers of the

power to make laws for the peace, order, and good government of Parliament.

the Commonwealth with respect to (82, 128, 131, 136) :

I. Trade and commerce with other countries, and among

(198) the States (143, 180, 197, 290) : •*

II. Taxation (297) ; but so as not to discriminate (184) between^:

States (282) or parts of States (131, 180, 181) :

III. Bounties on the production or export of goods, but so that

such bounties shall be uniform throughout the Common-
wealth (131, 180) :

IV. Borrowing money on the public credit of the Common- ^

wealth (180) :
V. Postal, telegraphic, telephonic, and other like services

(142) :
VI. The naval and military defence of the Commonwealth and ^
of the several States, and the control of the forces to
execute and maintain the laws of the Commonwealth
(141):
VII. Light-houses, light-ships, beacons and buoys (142) :
VIII. Astronomical and meteorological observations (142) :
IX. Quarantine (142) :
X. Fisheries in Australian waters beyond territorial limits

(143) :
XI. Census and statistics (142) : "*
XII. Currency, coinage, and legal tender (149) :*■

XIII. Banking, other than State banking ; also State banking

extending beyond the limits of the State concerned, the
incorporation of banks, and the issue of paper money
(145, 198) :

XIV. Insurance, other than State insurance ; also State insurance

extending beyond the limits of the State concerned
(146):
XV. Weights and measures (146) : "

344 THE COMMONWEALTH ACT.

XVI. Bills of exchange and promissory notes (146, 198):
XVII. Bankruptcy and insolvency (146, 198):
• XVIII. Copyrights (147, 148), patents of inventions and designs,
and trade marks (147, 148) :
. XIX. Naturalization and aliens (144) :

XX. Foreign corporations, and trading or financial corporations

formed within the limits of the Commonwealth (148) :
XXI. Marriage (149) :

XXII. Divorce and matrimonial causes ; and in relation thereto,
parental rights, and the custody and guardianship of
infants (149) :

XXIII. Invalid and old-age pensions (156) :

XXIV. The service and execution throughout the Commonwealth

of the civil and criminal (156) process and the judg-
ments of the courts of the States (152, 156, 157):
XXV. The recognition throughout the Commonwealth of the laws,
the public acts and records, and the judicial proceedings
of the States (152, 155-157):
XXVI. The people of any race, other than the aboriginal race in
any State, for whom it is deemed necessary to make
special laws (144) :
XXVII. Immigration and emigration (144) :
XXVIII. The influx of criminals (144) :
XXIX. External affairs (142) :
XXX. The relations of the Commonwealth with the islands of the

Pacific (144, 145) :
XXXI. The acquisition of property on just terms (159) from
any State or person for any purpose (159) in respect of
which the Parliament has power to make laws (159) :
XXXII. The control of railways with respect to transport for the
naval and military purposes of the Commonwealth (141):
xxxiii. The acquisition, with the consent of a State (134), of
any railways of the State on terms arranged between
the Commonwealth and the State (157) :
XXXIV. Railway construction and extension in any State with the

consent (134) of that State (157, 158) :
XXXV. Conciliation and arbitration for the prevention and settle-
ment of industrial disputes extending beyond the limits
of any one State (156) :
xxxvL Matters in respect of which this Constitution makes provi-
sion until the Parliament otherwise provides (106, 160,
194):
XXXVII. Matters referred to the Parliament of the Commonwealth
by the Parliament or Parliaments of any State or States,
but so that the law shall extend only to States by whose

THE COMMONWEALTH ACT. 345

Parliaments the matter is referred, or which after-
wards adopt the law (134, 158) :

XXXVIII. The exercise within the Commonwealth, at the request or
with the concurrence of the Parliaments of all the
States directly concerned (134), of any power which
can at the establishment of this Constitution (158)
be exercised only by the Parliament of the United
Kingdom or by the Federal Council of Australasia
(158, 159) :

1 xxxix. Matters incidental to the execution of any power vested
by this Constitution in the Parliament or in either
Ht)use thereof, or in the Government of the Common-
wealth, or in the Federal Judicature, or in any
department or officer of the Commonwealth (90,
160):

52. The Parliament shall, subject to this Constitution, have Exclusive
exclusive power (135, 136, 309) to make laws for the peace, parliament,
order, and good government of the Commonwealth with respect

to (162) :

I. The seat of Government of the Commonwealth, and all
places acquired by the Commonwealth for public purposes
(71,162,312):
II. Matters relating to any department of the public service
the control of which is by this Constitution (163) trans-
ferred to the Executive Government of the Commonwealth
(141, 163, 180, 195):
III. Other matters declared by this Constitution to be within
the exclusive power of the Parliament (69, 128, 164) :

53. Proposed laws (177) appropriating (120) revenue or moneys, powers of the
or imposing taxation, shall not originate in the Senate. But J^g^J Jf

a proposed law shall not be taken to appropriate revenue or legislation,
moneys, or to impose taxation, by reason only of its containing
provisions for the imposition or appropriation of fines or other
pecuniary penalties, or for the demand or payment or appropria-
tion of fees for licenses, or fees for services under the proposed
law.

The Senate may not amend proposed laws imposing taxation,
or proposed laws appropriating revenue or moneys for the ordinary
annual services of the Government. (119.)

The Senate may not amend any proposed law so as to increase
any proposed charge or burden on the people. (119.)

The Senate may at any stage return to the House of Represen-
tatives any proposed law which the Senate may not amend,
requesting, by message, the omission or amendment of any items
or provisions therein. And the House of Representatives may if

346

THE COMMONWEALTH ACT.

Appropriation
Bills.

Tax Bill.

Recommenda-
tion of money
votes.

Disagreement
between the
Houses.

it thinks fit make any of such omissions or amendments, with or
without modifications. (119.)

Except as provided in this section, the Senate shall have equal
power with the House of Representatives in respect of all proposed
laws. (120.)

54. The proposed law (177) which appropriates revenue or
moneys for the ordinary annual services of the Government
shall deal only with such appropriation. (120, 121.)

55. Laws (177) imposing taxation shall deal only with the
imposition of taxation (178), and any provision therein dealing
with any other matter shall be of no efiect.

Laws imposing taxation, except laws imposing duties of customs
or of excise, shall deal with one subject of taxation only (178),
but laws imposing duties of customs (178) shall deal with duties
of customs only, and laws imposing duties of excise shall deal with
duties of excise only. (120, 121.)

56. A vote, resolution, or proposed law (177) for the appropria-
tion of revenue or moneys shall not be passed unless the purpose
of the appropriation has in the same session been recommended by
message of the Governor-General to the House in which the
proposal originated. (95, 116, 118.)

57. If the House of Representatives passes any proposed law
(125, 177), and the Senate rejects or fails to pass it, or passes
it with amendments to which the House of Representatives will
not agree (318), and if after an interval of three months (125)
the House of Representatives, in the same or the next session,
again passes the proposed law with or without any amendments
which have been made, suggested, or agreed to by the Senate, and
the Senate rejects or fails to pass it, or passes it with amendments
to which the House of Representatives will not agree, the Governor-
General may dissolve the Senate (98, 125) and the House of
Representatives simultaneously (99). But such dissolution shall
not take place within six months before the date of the expiry of
the House of Representatives by effluxion of time.

If after such dissolution the House of Representatives again
passes the proposed law with or without any amendments which
have been made, suggested, or agreed to by the Senate, and the
Senate rejects or fails to pass it, or passes it with amendments to
which the House of Representatives will not agree, the Governor-
General may convene a joint sitting of the members of the Senate
and of the House of Representatives. (125.)

The members present at the joint sitting may deliberate and
shall vote together upon the proposed law as last proposed by the
House of Representatives, and upon amendments, if any, which
have been made therein by one House and not agreed to by the

THE COMMONWEALTH ACT 347

other, and any such amendments which are affirmed by an absolute
majority (318) of the total number of the members of the Senate
and House of Representatives, shall be taken to have been carried,
and if the proposed law, with the amendments, if any, so carried is
affirmed by an absolute majority of the total number of the members
of the Senate and House of Representatives, it shall be taken to have
been duly passed by both Houses of the Parliament, and shall be
presented to the Governor-General for the Queen's assent. (126,
319.)

58. When a proposed law (177), passed by both Houses of the Royal assent to
Parliament is presented to the Governor-General for the Queen's

assent, he shall declare, according to his discretion (95), but sub-
ject to this Constitution (95, 96), that he assents in the Queen's
name (95), or that he withholds assent, or that he reserves the law
for the Queen's pleasure.

The Governor-General may return to the House in which it Recommenda-
originated any proposed law so presented to him, and may transmit Govemor-
therewith any amendments which he may recommend and the General.
Houses may deal with the recommendation.

59. The Queen may disallow any law (178) within one year from Disallowance by
the Governor-General's assent, and such disallowance on being made ® y"®®"-
known by the Governor-General, by speech or message to each of

the Houses of the Parliament, or by Proclamation, shall annul the
law from the day when the disallowance is so made known. (97.)

60. A proposed law reserved for the Queen's pleasure shall not signification of
have any force unless (178) and until within two years from the ?n BUls ^^^^^^"^^
day on which it was presented to the Governor-General for the reserved.
Queen's assent the Governor-General makes known, by speech or

message to each of the Houses of the Parliament, or by Proclama-
tion, that it has received the Queen's assent. (247.)

A.D. 1900.
CHAPTER 11. Chapter II.

tTHE
Government.

61. The executive power of the Commonwealth is vested in the Executive

T)OWGr

Queen (215) and is exercisable by the Governor-General as the
Queen's representative (93), and extends to the execution and
maintenance of this Constitution (80), and of the laws of the
Commonwealth. (82, 213, 217, 219.)

62. There shall be a Federal Executive Council to advise the Federal Execu-
Governor-General in the government of the Commonwealth (225),

and the members of the Council shall be chosen and summoned by
the Governor-General and sworn as Executive Councillors (225),
and shall hold office during his pleasure.

348

THE COMMONWEALTH ACT.

Provisions
referring to
Governor-
General.

Ministers of
State.

Ministers to sit
in Parliament.

Number of
Ministers.

Salaries of
Ministers.

Appointment of
civil servants.

Command of
naval and
military forces.

Transfer of

certain

departments.

63. The provisions of this Constitution referring to the Governor-
General in Council shall be construed as referring to the Governor-
General acting with the advice of the Federal Executive Council.
(224, 229.)

64. The Governor-General (225) may appoint oflScers to ad-
minister such departments of State of the Commonwealth as the
Governor-General in Council may establish. (226.)

Such officers shall hold office during the pleasure of the Governor-
General. They shall be members of the Federal Executive Council
(225), and shall be the Queen's Ministers of State for the Common-
wealth. (215.)

After the first general election no Minister of State shall hold
office for a longer period than three months unless he is or becomes
a senator or a member of the House of Representatives. (90,
225.)

65. Until the Parliament otherwise provides, the Ministers of
State shall not exceed seven in number, and shall hold such offices
as the Parliament prescribes, or, in the absence of provision, as the
Governor-General directs. (90, 226.)

66. There shall be payable to the Queen, out of the Consolidated
Revenue Fund of the Commonwealth, for the salaries of the Minis-
ters of State, an annual sum which, until the Parliament otherwise
provides, shall not exceed twelve thousand pounds a year. (190,
226.)

67. Until the Parliament otherwise provides, the appointment
and removal of all other officers of the Executive Government of
the Commonwealth shall be vested in the Governor-General in
Council (225), unless the appointment is delegated by the
Governor-General in Council or by a law of the Commonwealth to
some other authority. (90.)

68. The command in chief of the naval and military forces of the
Commonwealth is vested in the Governor-General (288) as the
Queen's representative. (93, 222.)

69. On a date or dates to be proclaimed by the Governor-General
after the establishment of the Commonwealth the following depart-
ments of the public service in each State shall become transferred
to the Commonwealth (141) : —

Posts, telegraphs, and telephones (142) ;
Naval and military defence (141, 288);
Light-houses, light-ships, beacons, and buoys (142) ;
Quarantine. (142.)

But the departments of customs and of excise (142) in each
State shall become transferred to the Commonwealth on its estab-
lishment. (180, 195, 231.)

THE COMMONWEALTH ACT. 349

70. In respect of matters which, under this Constitution, pass to Certain power*
the Executive Government of the Commonwealth, all powers and to vest in
functions which at the establishment of the Commonwealth are General!'^
vested in the Governor of a Colony, or in the Governor of a Colony
with the advice of his Executive Council, or in any authority of a
Colony shall vest in the Governor-General, or in the Governor-
General in Council, or in the authority exercising similar powers
under the Commonwesilth, as the case requires. (217, 231.)

CHAPTER III. CHi^ERTfi.

THE JUDICATURE. Thk Judicature.

71. The judicial power of the Commonwealth shall be vested in a Judicial power
Federal Supreme Court, to be called the High Court of Australia, ^"^^ ^'''"'*^-
and in such other federal courts as the Parliament creates, and in

such other courts as it invests with federal jurisdiction (82). The
High Court shall consist of a Chief Justice, and so many other
Justices, not less than two, as the Parliament prescribes. (243.)

72. The Justices of the High Court and of the other courts created
by the Parliament —

I. Shall be appointed by the Governor-General in Council Judges'

(225,278): SS.Tnd''

II. Shall not be removed except by the Governor-General in remuneration.

Council, on an address from both Houses of the Parlia-
ment in the same session, praying for such removal on
the ground of proved misbehaviour or incapacit}^ (90,
278):
III. Shall receive such remuneration as the Parliament may fix ;
but the remuneration shall not be diminished during their
continuance in office. (90, 192, 278, 280.)

73. The High Court shall have jurisdiction, with such exceptions Appellate
and subject to such regulations (252, 254) as the Parliament pre- m^ Court °
scribes (248), to hear and determine appeals from all (246) judg-
ments, decrees, orders, and sentences —

I. Of any Justice or Justices exercising the original jurisdiction
of the High Court :

II. Of any other federal court, or court exercising federal juris-

diction (254) ; or of the Supreme Court of any State
(251), or of any other court (251) of any State from
which at the establishment of the Commonwealth an appeal
lies to the Queen in Council :

III. Of the Inter-State Commission, but as to questions of law

only :

360 THE COMMONWEALTH ACT.

and the judgment of the High Court in all such cases shall be final
and conclusive. (248.)

But no exception or regulation prescribed by the Parliament
shall prevent the High Court from hearing and determining any
appeal from the Supreme Court of a State in any matter in which
at the establishment of the Commonwealth an appeal lies from such
Supreme Court to the Queen in Council. (246, 252.)

Until the Parliament otherwise provides, the conditions of and
restrictions on appeals to the Queen in Council from the Supreme
Courts of the several States shall be applicable to appeals from them
to the High Court. (246, 248, 252, 254, 260.)

Appeal to Queen 74. No appeal shall be permitted to the Queen in Council from a
decision of the High Court (252) upon any question, howsoever
arising, as to the limits inter se (248) of the Constitutional
powers of the Commonwealth and those of any State or States, or
as to the limits inter se (248) of the Constitutional powers of any
two or more States, unless the High Court shall certify that the
question is one which ought to be determined by Her Majesty in
Council. (247.)

The High Court may so certify if satisfied that for any special
reason the certificate should be granted, and thereupon an appeal
shall lie to Her Majesty in Council on the question without further
leave. (247.)

Except as provided in this section (248), this Constitution shall
not impair any right which the Queen may be pleased to exercise
by virtue of Her Royal prerogative to grant special leave of appeal
(247) from the High Court to Her Majesty in Council. The
Parliament may make laws limiting the matters in which such leave
may be asked, but proposed laws containing any such limitation
shall be reserved by the Governor-General for Her Majesty's
pleasure. (97,246,247,249.)

Original 75. In all matters (259) —

^Hi^h Court.''* I. Arising under any treaty (259, 261) :

II. Affecting consuls or other representatives of other countries
(261):

III. In which the Commonwealth (269), or a person suing or

being sued on behalf of the Commonwealth is a party
(262):

IV. Between States (263), or between residents of different

States, or between a State and a resident of another (264)

State (262, 266):
V. In which a writ of mandamus or prohibition or an injunction

is sought against an officer of the Commonwealth (269):
the High Court shall have original (244, 274) jurisdiction. (254,
259.)

■ r

THE COMMONWEALTH ACT. 361

76. The Parliament may make laws conferring original juris- Additional
diction on the High Court (244) in any matter (259) : j'unsdiction,

I. Arising under this Constitution, or involving its inter-
pretation (270) :
II. Arising under any laws made by the Parliament (270) :

III. Of admiralty and maritime jurisdiction (273) :

IV. Relating to the same subject-matter claimed under the laws

of different States. (254, 260, 273.)

77. With respect to any of the matters mentioned in the last two Power to define
sections the Parliament may make laws : ^""^ ^° ^°""

I. Defining the jurisdiction of any federal court other than the
High Court (274) :

II. Defining the extent to which the jurisdiction of any federal

court (274) shall be exclusive of that which belongs to
or is invested in the courts of the States (274) :

III. Investing any court of a State with federal jurisdiction.

(244, 274.)

78. The Parliament may make laws conferring rights to proceed Proceedings
{267, 268) against the Commonwealth or a State (269) in respect commonwealth
of matters (267) within (267) the limits of the judicial power. °^ ^*^^*®-
<262, 267.)

79. The federal jurisdiction of any court may be exercised by Number of
such number of judges as the Parliament prescribes. (276.) ^" ^^°'

80. The trial on indictment of any ofi'ence against any law of the Trial by jury.
Commonwealth shall be by jury, and every such trial shall be held t

in the state (282) where the offence was committed, and if the
offence was not committed within any State (282) the trial shall
be held at such place or places as the Parliament prescribes,
(272.)

CHAPTER IV. ^4f^J9^%

FINANCE AND TRADE. ^'^iT^^^

180 (see Chapter XI.).

81. All revenues or moneys raised or received by the Executive Consolidated
Government of the Commonwealth shall form one Consolidated ^'^®""®
Revenue Fund (187), to be appropriated (188) for the purposes

of the Commonwealth (188) in the manner and subject to the
charges and liabilities imposed by this Constitution. (188.)

82. The costs, charges, and expenses incident to the collection, Expenditure

charged thereon,
management, and receipt of the Consolidated Revenue Fund shall

form the first charge thereon (190) ; and the revenue of the
Commonwealth shall in the first instance be applied to the pay-
ment of the expenditure of the Commonwealth. (192.)

352

THE COMMONWEALTH ACT.

Money to bo
appropriated by
law.

Transfer of
officers.

Transfer of
property of

State.

83. No money shall be drawn from the Treasury of the Common-
wealth except under appropriation made by law. (187.)

But until the expiration of one month after the first meeting of
the Parliament the Governor-General in Council may draw from
the Treasury and expend such moneys as may be necessary for the
maintenance of any department transferred to the Commonwealth
and for the holding of the first elections for the Parliament. (187.)

84. When any departmeot of the public service of a State becomes
transferred to the Commonwealth, all officers of the department
shall become subject to the control of the Executive Government of
the Commonwealth.

Any such officer who is not retained in the service of the Common-
wealth shall, unless he is appointed to some other office of equal
emolument in the public service of the State, be entitled to receive
from the State any pension, gratuity, or other compensation payable
under the law of the State on the abolitiou of his office.

Any such officer who is retained in the service of the Common-
wealth shall preserve all his existing and accruing rights, and shall
be entitled to retire from office at the time, and on the pension or
retiring allowance which would be permitted by the law of the State
if his service with the Commonwealth were a continuation of hia
service with the State. Such pension or^retiring allowance shall be
paid to him by the Commonwealth (192); but the State shall pay
to the Commonwealth a part tkereof, to be calculated on the pro-
portion which his term of service with the State bears to his whole
term of service, and for the purpose of the calculation his salary
shall be taken to be that paid to him by the State at the time of the
transfer.

Any officer who is, at the establishment of the Commonwealth,,
in the public service of a State, and who is, by consent of the
Governor of the State with the advice of the Executive Council
thereof, transferred to the public service of the Commonwealth,
shall have the same rights as if he had been an officer of a depart-
ment transferred to the Commonwealth and were retained in the
service of the Commonwealth.

85. When any department of the public service of a State is trans-
ferred to the Commonwealth —

I. All property of the State, of any kind, used exclusively in
connexion with the department, shall become vested in the
Commonwealth (19-5) ; but, in the case of the departments
controlling customs and excise and bounties, for such
time only as the Governor-General in Council may declare
to be necessary. (195.)
II. The Commonwealth may acquire any property of the State,
of any kind, used, but not exclusively used, in connexion

THE COMMONWEALTH ACT. 353

with the department ; the value thereof shall, if no agree-
ment can be made, be ascertained in, as nearly as may be,
the manner in which the value of land, or of an interest in
land, taken by the State for public purposes is ascertained
under the law of the State in force at the establishment of
the Commonwealth.

III. The Commonwealth shall compensate the State for the value

of any property passing to the Commonwealth under this
section (192, 194): if no agreement can be made as to the
mode of compensation, it shall be determined under laws
to be made by the Parliament.

IV. The Commonwealth shall, at the date of the transfer, assume

the current obligations of the State in respect of the

department transferred. (192, 194.)
86. On the establishment of the Commonwealth, the collection
and control of duties of customs and of excise, and the control of
the payment of bounties, shall pass to the Executive Government
of the Commonwealth. (195.)

87. During a period of ten years after the establishment of the
Commonwealth and thereafter until the Parliament otherwise
provides (193, 195), of the net revenue of the Commonwealth from
duties of customs and of excise not more than one-fourth shall be
applied annually by the Commonwealth towards its expenditure.
(192.)

The balance shall, in accordance with this Constitution, be paid
to the several States, or applied towards the payment of interest
on debts (195) of the several States taken over by the Common-
wealth. (191.)

88. Uniform duties of customs shall be imposed within two years Uniform duties
after the establishment of the Commonwealth. (196.)

89. Until the imposition of uniform duties of customs : Payment to

I. The Commonwealth shall credit to each State the revenues uniform duties.

collected therein by the Commonwealth.
II, The Commonwealth shall debit to each State :

(a) the expenditure therein of the Commonwealth (190)
incurred solely for the maintenance or continuance,
as at the time of transfer, of any department
transferred from the State to the Commonwealth ;
(190.)
(6) the proportion of the State, according to the number
of its people, in the other expenditure of the Com-
monwealth. (191, 192.)
III. The Commonwealth shall pay to each State month by
month the balance (if any) in favour of the State. (190
191.)

Z

364

THE COMMONWEALTH ACT.

Exclusive power
over customs,
excise, aud
bounties.

Exceptions as to
bounties.

Trade within
the Common-
wealth to be free.

Payment to
States for five
years after uni
form Tariflfs.

Distribution of
surplus.

90. On the imposition of uniform duties of customs the power of
the Parliament to impose duties of customs and of excise, and to
grant bounties on the production or export of goods, shall become
exclusive. (196, 202, 290.)

On the imposition of uniform duties of customs all laws of the
several States imposing duties of customs or of excise, or offering
bounties on the production or export of goods, shall cease to have
eflFect (196) ; but any grant of or agreement for any such bounty
lawfully made by or under the authority of the Government of any
State shall be taken to be good if made before the thirtieth day of
June, One thousand eight hundred and ninety-eight, and not
otherwise. (196.)

91. Nothing in this Constitution prohibits a State from granting
any aid to or bounty on mining for gold, silver, or other metals, nor
from granting, with the consent of both Houses of the Parliament
of the Commonwealth expressed by resolution, any aid to or bounty
on the production or export of goods. (196.)

92. On the imposition of uniform duties of customs (205), trade,
commerce, and intercourse among the States (282), whether by
means of internal carriage or ocean navigation, shall be absolutely
free. (148, 201-204, 290, 304-306.)

But notwithstanding anything in this Constitution, goods im-
ported before the imposition of uniform duties of customs into any
State, or into any colony which, whilst the goods remain therein,
becomes a State, shall, on thence passing into another State within
two years after the imposition of such duties, be liable to any duty
chargeable on the importation of such goods into the Commonwealth,
less any duty paid in respect of the goods on their importation.
(196.)

93. During the first five years after the imposition of uniform
duties of customs, and thereafter until the Parliament otherwise
provides :

I. The duties of customs chargeable on goods imported into a
State and afterwards passing into another State for con-
sumption, and the duties of excise paid on goods produced
or manufactured in a State and afterwards passing into
another State for consumption, shall be taken to have
been collected not in the former but in the latter State.
(191.)

II. Subject to the last sub-section, the Commonwealth shall
credit revenue, debit expenditure, and pay balances to the
several States as prescribed for the period preceding the
imposition of uniform duties of customs. (191.)

94. After five years from the imposition of uniform duties of
customs, the Parliament may provide, on such basis as it deems fair,

THE COMMONWEALTH ACT. 355

for the monthly payment to the several States of all surplus
revenue of the Commonwealth. (191.)

95. Notwithstanding anything in this Constitution, the Parlia- Customs duties
ment of the State of Western Australia, if that State be an Original auSiS?
State, may during the first five years after the imposition of uniform

duties of customs, impose duties of customs on goods passing into
that State, and not originally imported from beyond the limits of
the Commonwealth; and such duties shall be collected by the
Commonwealth.

But any duty so imposed on any goods shall not exceed during
the first of such years the duty chargeable on the goods under the law
of Western Australia in force at the imposition of uniform duties
(104), and shall not exceed during the second, third, fourth, and
fifth of such years respectively, four-fifths, three-fifths, two-fifths,
and one-fifth of such latter duty (194), and all duties imposed
under this section shall cease at the expiration of the fifth year
after the imposition of uniform duties.

If at any time during the five years the duty on any goods under
this section is higher than the duty imposed by the Commonwealth
on the importation of the like goods, then such higher duty shall be
collected on the goods when imported into Western Australia from
beyond the limits of the Commonwealth. (194.)

96. During a period of ten years after the establishment of the Financial assist-
■Commonwealth and thereafter until the Parliament otherwise pro- ^°^® '^ States.
vides (193, 194), the Parliament may grant financial assistance

to any State on such terms and conditions as the Parliament thinks
fit. (189, 193, 194.)

97. Until the Parliament otherwise provides, the laws in force in Audit,
any Colony which has become or becomes a State with respect to

the receipt of revenue and the expenditure of money on account of
the Government of the Colony, and the review and audit of such
receipt and expenditure, shall apply to the receipt of revenue and
the expenditure of money on account of the Commonwealth (188)
in the State in the same manner as if the Commonwealth, or the
Government, or an ofiicer of the Commonwealth, were mentioned
whenever the Colony, or the Government, or an oflScer of the Colony
is mentioned.

98. The power of the Parliament to make laws with respect to Trade and com-
trade and commerce extends to navigation and shipping, and to i[^T^ation"and
railways (157, 158, 180, 198, 199) the property of any State. State railways.

99. The Commonwealth shall not, by any law or regulation of Commonwealth
trade, commerce, or revenue, give preference to one State (282) preference.

or any part thereof over another State or any part thereof. (66,

131, 191, 199, 207.) ^, ^^^

' ' ' • / Nor abridge

100. The Commonwealth shall not, by any law or regulation of "g^t to use

° water.

356

THE COMMONWEALTH ACT.

Inter-State
Commission.

Parliament may
forbid prefer-
ences by State.

Commissioners'
appointment,
tenure, and.
remimeration.

Saving of
certain ratt a.

Taking over
public debts of
States.

trade or commerce, abridge the right of a State or of the residents
therein to the reasonable use of the waters of rivers for conservation
or irrigation. (66, 198, 199.)

101. There shall be an Inter-State Commission, with such
powers of adjudication and administration as the Parliament deems
necessary for the execution and maintenance, within the Common-
wealth, of the provisions of this Constitution relating to trade and
commerce, and of all laws made thereunder. (205.)

102. The Parliament may by any law with respect to trade
or commerce forbid, as to railways, any preference or discrimina-
tion (185) by any State, or by any authority constituted under a
State (198), if such preference or discrimination is undue and
unreasonable (185), or unjust to any State (283) ; due regard
being had to the financial responsibilities incurred by any State in
connexion with the construction and maintenance of its railways
(208). But no preference or discrimination shall, within the
meaning of this section, be taken to be undue and unreasonable, or
unjust to any State, unless so adjudged by the Inter-State
Commission. (199, 207.)

103. The members of the Inter-State Commission :

I. Shall be appointed by the Governor-General in Council :
II. Shall hold office for seven years, but may be removed within
that time by the Governor-General in Council, on an
address from both Houses of the Parliament in the same
session praying for such removal on the ground of proved
misbehaviour or incapacity :
III. Shall receive such remuneration as the Parliament may fix j
but such remuneration shall not be diminished during
their continuance in office. (209.)

104. Nothing in this Constitution shall render unlawful any
rate for the carriage of goods upon a railway, the property of a
State, if the rate is deemed by the Inter-State Commission to be
necessary for the development of the territory of the State, and if
the rate applies equally to goods within the State and to goods
passing into the State from other States (199, 207.)

105. The Parliament may take over from the States their public
debts as existing at the establishment of the Commonwealth, or a
proportion thereof according to the respective numbers of their
people as shown by the latest statistics of the Commonwealth, and
may convert, renew, or consolidate such debts, or any part thereof ;.
and the States shall indemnify the Commonwealth in respect of the
debts taken over, and thereafter the interest payable in respect of
the debts shall be deducted and retained (191) from the portions
of the surplus revenue of the Commonwealth payable to the several
States, or if such surplus is insufficient, or if there is no surplus.

THE COMMONWEALTH ACT 357

then the deficiency or the whole amount shall be paid by the
several States, (194.)

CHAPTER V. Chapter V.

THE STATES (xviii.). The states.

106. The Constitution of each State (285) of the Common- Saving of
wealth shall, subject to this Constitution, continue as at the Constitutions,
establishment of the Commonwealth, or as at the admission or
establishment of the State, as the case may be, until altered in
accordance with the Constitution of the State. (69, 285.)

107. Every power of the Parliament of a Colony which has Saving of power
become or becomes a State, shall, unless it is by this Constitution Parliaments,
exclusively vested in the Parliament of the Commonwealth or
withdrawn from the Parliament of the State, continue (290,

292), as at the establishment of the Commonwealth, or as at the
admission or establishment of the State, as the case may be.
(69, 285.)

108. Every law in force in a Colony which has become or Saving of State
becomes a State, and relating to any matter within the powers of ^^^'

the Parliament of the Commonwealth, shall, subject to this Con-
stitution (308), continue in force in the State (195) ; and, until
provision is made in that behalf by the Parliament of the Common-
wealth, the Parliament of the State shall have such powers of
alteration and of repeal in respect of any such law as the Parlia-
ment of the Colony had until the Colony became a State. (69,
308.)

109. When a law of a State is inconsistent with a law of the Com- inconsistency
monwealth, the latter shall prevail, and the former shall to the ° *^^ 7
extent of the inconsistency, be invalid. (69, 172-174, 290.)

110. The provisions of this Constitution relating to the Governor Provisions
of a State extend and apply to the Governor for the time being of Governor,
the State, or other chief executive officer or administrator of the
government of the State. (286.)

111. The Parliament of a State may surrender any part of the states may
State (284) to the Commonwealth (312, 314) ; and upon such territory,
surrender, and the acceptance thereof by the Commonwealth, such

part of the State shall become subject to the exclusive jurisdiction
of the Commonwealth. (71, 321.)

112. After uniform duties of customs have been imposed, a State states may levy
(290) may levy on imports or exports, or on goods passing into ini^p^tion^laws.
or out of the State, such charges as may be necessary for executing

the inspection laws (290) of the State ; but the net produce of
all charges so levied shall be for the use of the Commonwealth ; and

358

THE COMMONWEALTH ACT.

Intoxicating
liquids.

States may not
raise forces.
Taxation of

Sroperty of
ommonwealtli
or State. '

States not to
coin money.

Commonwealtli
not to legislate
in respect of y
religion.

Rights of resi-
dents in States.

Recognition of

laws, etc., of ;
States.

Protection of
States from
invasion and *
violence.

Custody of
offenders against
laws of the
Commonwealth.

any such inspection laws may be annulled by the Parliament of the
Commonwealth. (181, 196.)

113. All fermented, distilled, or other intoxicating liquids passing
into any State or remaining therein for use, consumption, sale, or
storage, shall be subject to the laws of the State as if such liquids
had been produced in the State. (181, 290, 306.)

114. A State shall not, without the consent of the Parliament of
the Commonwealth, raise or maintain any naval or military force
(141, 288), or impose any tax on property of any kind belong-
ing to the Commonwealth (185, 298), nor shall the Common-
wealth impose any tax (185) on property (187) of any kind
belonging to a State. (185, 187, 309.)

^115. A State shall not coin money, nor make anything but gold
and silver coin a legal tender in payment of debts. (149, 292,
309.)

116. The Commonwealth shall not make any law for establishing
any religion, or for imposing any religious observance, or for pro-
hibiting the free exercise of any religion (307), and no religious
test shall be required as a qualification for any office or p.ublic trust
under the Commonwealth. (307, 313, 329.)

117. A subject of the Queen (298), resident in any State
(313), shall not be subject in any other State to any disability or
discrimination (184) which would not be equally applicable to him
if he were a subject of 'the Queen resident in (293-298) such other
State. (205, 304, 309.)

118. Full faith and credit shall be given, throughout the Common-
wealth, to the laws, the public acts and records, and the judicial
proceedings of every State. (152, 155, 293, 309).

119. The Commonwealth shall protect every State against inva-
sion (^06) and, on the application of the Executive Government
of the State, against domestic violence. (141, 213.)

120. Every State shall make provision for the detention in its
prisons of persons accused or convicted of offences against the laws
of the Commonwealth, and for the punishment of persons convicted
of such offences, and the Parliament of the Commonwealth may
make laws to give effect to this provision. (285.)

A.D. 1900.
Chapter VI.

CHAPTER VI.

New States.

NEW STATES.

New states may 121. The Parliament may admit to the Commonwealth (313)

established. or establish new States (314), and may upon such admission or

^establishment make or impose such terms and conditions (314),

THE COMMONWEALTH ACT. 359

including the extent of representation in either House of the
Parliament, as it thinks fit.

122. The Parliament may make laws for the government of any Government of
territory surrendered by any State to and accepted by the Common- ®^" ^"®^"
wealth, or of any territory placed by the Queen under the authority ^

of and accepted by the Commonwealth (311), or otherwise
acquired (312) by the Commonwealth, and may allow the
representation (1^3) of such territory in either House of the
Parliament to the extent and on the terms which it thinks fit.
(71.)

123. The Parliament of the Commonwealth may, with the Alteration of
consent of the Parliament of a State, and the approval of the ^^^
majority of the electors of the State (314, 323) voting upon the
question, increase, diminish, or otherwise alter the limits (284,

314) of the State, upon such terms and conditions as may be
agreed on, and may, with the like consent, make provision
respectiug the effect and operation of any increase or diminution or
alteration of territory in relation to any State affected.

124. A new State may be formed by separation of territory Formation of
from a State (284, 314), but only with the consent of the Parlia- °®

ment thereof (314), and a new State may be formed by the union ^
of two or more States (314) or parts of States, but only with the
consent (134, 314) of the Parliaments of the States affected.
(68.)

CHAPTER Vn. c^Srv'ii.

MISCELLANEOUS. Miscellanbous.

125. The seat of Government of the Commonwealth shall be Seat of
determined by the Parliament, and shall be within territory which
shall have been granted to (284) or acquired by the Common-
wealth, and shall be vested in and belong to the Commonwealth,

and shall be in the State (282) of New South Wales, and be
distant not less than one hundred miles from Sydney.

Such territory shall contain an area of not less than one hundred
square miles, and such portion thereof as shall consist of Crown
lands shall be granted to the Commonwealth without any payment
therefor.

The Parliament shall sit at Melbourne until it meet at the seat
of Government. (71.)

126. The Queen may authorize the Governor-General to appoint Power to Her
any person, or any persons jointly or severally, to be his deputy or authorize
deputies within any part of the Commonwealth, and in that Qeneraf to
capacity to exercise during the pleasure of the Governor-General appoint deputies

360 THE COMMONWEALTH ACT.

such powers and functions of the Governor-General as he thinks fit
to assign to such deputy or deputies, subject to any limitations
expressed or directions given by the Queen ; but the appointment
of such deputy or deputies shall not affect the exercise by the
Governor-General himself of any power or function. (93.)
Aborigines jiot 127. In reckoning the numbers of the people of the Common-
reckoning ^ wealth, or of a State or other part of the Commonwealth, aboriginal
population. natives shall not be counted.

ch^SeITi'ii. ' chaptp:r viii.

iLLTKRATioN OF ALTERATION (318-321) OF THE CONSTITUTION.

Constitution. ^ '

(62, 178.)

Mode of altering 128. This Constitution shall not be altered except in the foUow-

tne Constitution , /„,>,v

ing manner (317):

The proposed law for the alteration thereof must be passed by an
absolute majority of each House of the Parliament, and not less
than two nor more than six months after its passage through both
Houses the proposed law shall be submitted in each State to the
electors qualified to vote for the election of members of the House
of Representatives.

But if either House passes any such proposed law by an absolute
majority, and the other House rejects or fails to pass it or passes it
with any amendment to which the first-mentioned House will not
agree, and if after an interval of three months the first-mentioned
House in the same or the next session again passes the proposed law
by an absolute majority with or without any amendment which has
been made or agreed to by the other House, and such other House
rejects or fails to pass it or passes it with any amendment to which
the first-mentioned House will not agree, the Governor-General may
submit the proposed law as last proposed by the first-mentioned
House, and either with or without any amendments subsequently
agreed to by both Houses, to the electors in each State qualified to
vote for the election of the House of Representatives. (125.)

When a proposed law is submitted to the electors the vote shall
be taken in such manner as the Parliament prescribes. But until
the qualification of electors of members of the House of Representa-
tives becomes uniform throughout the Commonwealth, only one-half
the electors voting for and against the proposed law shall be counted
in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting
approve the proposed law, and if a majority of all the electors voting
also approve the proposed law, it shall be presented to the Governor-
General for the Queen's assent. (95.)

THE COMMONWEALTH ACT. 361

No alteration diminishing the proportionate representation of any-
State in either House of the Parliament, or the minimum number
of representatives of a State in the House of Eepresentatives (103),
or increasing, diminishing, or otherwise altering the limits of
the State, or in any manner affecting the provisions of the Consti-
tution in relation thereto shall become law unless the majority of the
electors voting in that State approve the proposed law. (103, 317-
322, 332.)

SCHEDULE.

OATH.

•I, A.B., do swear that I will be faithful and bear true allegiance
to Her Majesty Queen Victoria, Her heirs and successors according
to law. So HELP ME God !

AFFIRMATION.

I, A.B., do solemnly and sincerely affirm and declare that I will
be faithful and bear true allegiance to Her Majesty Queen Victoria,
Her heirs and successors according to law.

(Note. — The name of the King or Queen of the United Kingdom
of Great Britain and Ireland for the time being is to he sub-
stituted from time to time.)

APPENDIX.

A. THE CHAKACTER OF POLITICAL UNIONS.

Permanent political unions are commonly classified as Confederation,
Incorporation (or Consolidation), and Federation. The nature of
Confederation as a type of political union is simple, though the name
is not unfrequently applied to organizations, which, in fact, belong to
one of the other classes, as when we speak of the Confederation of
Canada or the Confederacy of the Swiss Republic. It is an alliance
of States, in which the central power " represents only the govern-
ments of the several members of the union ; its powers consist simply
in issuing requisitions to the state governments, which, when within
the limits of the federal authority, it is the duty of those governments
to carry out." The purposes for which requisitions may be made are
those, which the parties have submitted to the " federal power " ; they
may be few or many, and might conceivably extend to everything
upon which sovereign power can operate. But so slight a tie will not
bear the pressure of many or indefinite requisitions. Defence against
external aggression, probably the conduct of foreign affairs, and the
determination of disputes between the States, which, by disturbing
internal tranquillity, expose the Confederacy to the danger of attack
from without — these are the objects to which a system of Confederate
States is likely to be confined. But " confederate " elements may be
found in the closer unions. In the Empire of Germany, which,
perhaps, from its monarchic government and the mode of its establish-
ment, as much as from the scope of the central authority, is often
regarded as a consolidation rather than a federation, the Bundesrath
— an upper chamber which overshadows the lower — is distinctly
confederate. Its constitution might easily mislead us as to its
character. The States are unequally represented ; their membership
roughly corresponds with their population and importance ; it there-
fore suggests a national democratic organization. But its true nature

THE CHARACTER OF POLITICAL UNIONS. 363

is thus accurately described by Mr. Laurence Lowell : "It is not an
international conference, because it is part of a constitutional system
and has power to enact laws. On the other hand, it is not a deliber-
ative assembly, because the delegates vote according to instructions
from home. It is unlike any other legislative chamber, inasmuch as
the members do not enjoy a fixed tenure of office, and are not free to
vote according to their personal convictions. Its essential charac-
teristics are, that it represents the governments of the States and not
their people, and that each State is entitled to a certain number of
votes, which it may authorize one or more persons to cast in its name,
those persons being its agents, whom it may appoint, recall, or instruct
at any time. The true conception of the Bundesrath, therefore, is that
of an assembly of the sovereigns of the States, who are not indeed
actually present, but appear in the persons of their representatives." ^

Incorporation differs from Confederation in that it substitutes a
new state for several states, in every case at any rate where the
incorporation does not consist merely in the absorption by one state
of part of another state. The state possesses a government, which
may or may not be sovereign, but which, in one form or another,
pervades the whole territory of the state, and is capable of affecting
all its subjects. If there be governments of parts of the state —what
are called local governments — they will commonly derive their
existence and authority from the central government, and, in any
case, they will be subject to its regulation, and will rely upon its organs
for their support. Complete unification would seem to imply such a
homogeneity of the institutions of the state, as would remove all the
marks of the former separateness of the component parts, which would
become mere geographical areas. But such an unification would
hardly contribute to the stability and durability of the state, and
the new state will act wisely to seek and retain the ancient landmarks.
In practice, consolidation does not in fact obliterate the original lines
of division ; and the retention of these lines furnishes what are
called the federal elements of an incorporated union. From one point
of view, the United Kingdom of Great Britain and Ireland is a perfect
incorporation or consolidation ; it is one state whose government — the
Imperial Parliament — unlimited in scope, supreme iti authority, and
unitary in action, is rightly regarded as a type of sovereignty in its
simplest and most direct form. But the constitution of both Houses
of Parliament, and the sei)arate administrative and jural systems, are
the legal recognition of the three kingdoms as separate units, and are
the federal elements in the union. To say that these "federal
elements " exist by virtue of the law, and therefore by the sufferance of
the state, is to say no more than may be said of every part of every
federation. The popular description " legivslative union" expresses

1 Lowell, Governments and Parties in Continental Europe, vol. i., pp. 264-5.

364 THE CHARACTER OF POLITICAL UNIONS.

the condition of the United Kingdom better than any other term
which can be applied to it.

Federal union differs from Confederation in this, that it creates a
new political organism, a state possessing all the attributes of
sovereignty. It is universal in scope, exclusive of every other power,
and of necessity supreme over, and acting upon, all persons and things
within its territory. To distinguish the "federal state" from the
"unitary state" is a much more difficult task. The distinction lies,
not in the nature of the state itself, but in the organization of govern-
ment. In every "federal state" the governmert consists of central
and local parts, neither owing its existence to the other, nor capable
of destruction by the other. The central government in matters
within its sphere extends over the whole territory and population
of the state; the local government is restricted in area. But, while
this may be said of every state called federal, the same may be said
of states regarded as unitary, where local insiituiions are directly
established by the constitution. Seeley ^ denies altogether that there
is any fundamental difference between the unitary and the federal
state, and adopts these terms merely as " marking conveniently the
great difference which may exist between states in respect of the
importance of local government." Even the preponderance of
the loc?tl government, which Seeley regards as the mark of the
federal state, can hardly be regarded as essential. In Canada, the
residuary power of government lies in the central and not in
the provincial power, and the control which the Dominion Govern-
ment may exerci-ie over the provincial in every department warns
us, that the doctrine of the independence of the governments in
their respective spheres must not be pushed too far. Neither in the
United States nor in Germany can we truly speak of the preponder-
ance of local government. On the whole, we must be content with
some vague description as that the indefiendence of the local govern-
ment surpasses anything which can fairly come under the head of
municipal freedom,- or we may adopt Lewis's^ description of a
subordinate government as one which possesses powers and institu-
tions applicable to every purpose of government, and which would
thus be capable of governing the district subject to it, if the supreme
government were altogether withdrawn.

To say no more than this, is to describe very imperfectly any federal
union that now exists or has ever existed. But the organisms, which
go by the name of Federations, present so great a diversity that,
beyond the characteristics named, there is hardly anything that may be
deemed essential save agreement. In general, the new state has

1 Seeley, Political Science, pp. 95 and 100.

-Freeman, History of Federal Government (second edition), p. 2.

3 Lewis, Government of Dependencies (Ed. Lucas), pp. 72 and 73.

THE CHARACTER OF POLITICAL UNIONS. 365

been formed by the coalescence of several states, which preserve their
existence as units, and maintain a large part of their previous
organization and functions as the "local part" of the government of
the new state, and, as units, are the basis of the organization of the
central government. This, with the fact that the functions that they
discharge are not enumerated, while those of the central government
are, gives them the appearance of an independent existence, which
leads to such statements as, that there is a " residuary sovereignty
in the state" (meaning the component state), that a federation is
a " union of sovereign states," and that a federal state diflfers from
other states by the fact that it is one state and several states.

In a complex political organism, where law and politics are
necessarily entwined, the importance of a clear appreciation of these
matters cannot be over-rated. " It requires patient and successful
discrimination to attain a point of view from which it is clearly seen
that there can be no such thing as residuary sovereignty ; that
sovereignty is entire or not at all ; and that what is left by the
state to the local organizations, in this manner of distribution, is only
the residuary power of government." ^

But the coalition of separate states is not the only way in which
a federal state may be established. The experience of the Dominion
of Canada has disproved the doctrine of Freeman, that " a federal
union, to be of any value, must arise by the establishment of a closer
tie between elements which were before distinct, not by the division
of members which have been hitherto more closely united." ^ Without
going so far as Mr. Goldwin Smith, who speaks of that union as
the creature of deadlock,^ we must recognize that the immediate
occasion of the accession of Upper and Lower Canada to the Con-
federation, proposed by the Maritime Provinces, was the perception of
the leading men of both parties, that Confederation offered an escape
from the embarrassment of a legislative union, which had proved too
close a tie. The very general interest in federation at the present
day is due to the belief, that it offers an escape from the dangers of
over-centralization in large states.

The complete and separate equipment of the central and local
governments for the discharge of the three governmental functions —
legislative, executive, and judicial — might well be considered essential
to the federal form. But a rigid adherence to this test would raise
the question of the federal character of the German Empire, where
executive power practically rests on the arm of Prussia, and where, as
to judicial power, the organization of the Courts of the States is
controlled by Imperial legislation. In Canada, the judges of the

iBiu-geas, Political Science and Constitutional Law, vol. ii., p. 7.

2 Freeman, History of Federal Government (second edition), p. 70.

3 Canada and the Canadian Question, p. 143.

366 THE CHARACTER OF POLITICAL UNIONS.

provincial courts are appointed, paid, and, should the occasion arise,
removed, by the Dominion Government.

The division of powers in a Federal State between central and
local organs, implies some machinery for confining each to its sphere.
But no one method for enforcing those limitations can be deemed
essential. The power of the Courts, as an incident of ordinary
judicial duties, to interpret the Constitution and prevent the other
organs from exceeding their powers, belongs fundamentally neither
to a written constitution nor to federalism, for both may and do exist
without it. It is in some respects, even, the contradictory of federalism
and its separation of powers. Its origin is in the unity and uni-
versality of the English Common Law and the jealousy of the
Comraon-Law^ Courts. For the source of what has been to so many
Englishmen the mythical power of the Supreme Court of the United
States, we must look rather to the conflicts of Coke and Bacon than to
the letter of the constitution of the United States.

If there be no essential difference in the scope even of a Con-
federation and an Incorporation, if the former may embrace every
subject over which governmental power can be exercised, we are
not likely to find the true test of federalism in the purposes of
union. So great an authority as Freeman, however, has said, "The
true and perfect Federal Commonwealth is any collection of States
in which it is equally unlawful for the Central Power to interfere
with the purely internal legislation of the several members, and for
the several members to enter into any diplomatic relation with other
powers." 1 This may describe, with some approach to accuracy, the
principle of the United States Constitution ; but, in neither of these
elements, does it truly describe the Constitution of the German
Empire, and it is wholly inapplicable to such unions of dependent
communities as constitute the Dominion of Canada and the Common-
wealth of Australia. "All must be subject to a common power
in matters which concern the whole body of members collectively," ^
still leaves one question : What are such common matters 1 The
answer can only be, those which the parties have declared to be
common.

Comparing the existing political unions with the three types,
we find that no actual union does more than approximate to a type,
and that it must be placed in one class or another, according to the
preponderance of one or the other elements in it. The Confederacy of
the United States did not operate wholly upon governments ; the
government of the present union contains elements national, federal,
and confederate. As has been pointed out, the German Empire is
sometimes regarded as a unitary State, sometimes as federal, but
it contains at anyrate one mark of confederation. The incorporate
1 Freeman, History of Federal Oovernment, p. 8. ^Ib., p. 2.

THE CHARACTER OF POLITICAL UNIONS. 367

union of Great Britain and Ireland has federal features in its
government, and the "confederation" of Canada produced an organism
without confederacy, and, with a government, which, in many of the
matters commonly associated with the federal form, exhibits the
marks of unitary rather than of federal government. In the forma-
tion of every political organism the only rule can be political
expediency.

B. CONSTITUTIONAL DOCUMENTS.
(a.) COMMONWEALTH OF AUSTEALIA.

L Proclamation of the Commomvealth of Australia.

BY THE QUEEN.

A PROCLAMATION.

Victoria R.,
"Whereas by an Act of Parliament passed in the sixty-third and
sixty-fourth years of Our reign, intituled " An Act to constitute the
Commonwealth of Australia," it is enacted that it shall be lawful
for the Queen, with the advice of the Privy Council, to declare by
Proclamation that on and after a day therein appointed, not being
later than one year after the passing of this Act, the people of Neiv
South Wales, Victoria, South Australia, Queensland, Tasmania, and
also, if Her Majesty is satisfied that the people of Western Australia
have agreed thereto, of Western Australia, shall be united in a Federal
Commonwealth under the name of the Commonwealth of Australia.

And whereas We are satisfied that the people of Western Australia
have agreed thereto accordingly.

We, therefore, by and with the advice of Our Privy Council, have
thought fit to issue this Our Royal Proclamation, and We do hereby
declare that on and after the first day of January One thousand nine
hundred and one the people of Nev) South Wales, Victoria, South Aus-
tralia, Queensland, Tasmania, and Western Australia shall be united
in a Federal Commonwealth under the name of The Commonwealth
of Australia.

Given at Our Court at Balmoral this seventeenth day of September
in the year of Our Lord One thousand nine hundred and in the sixty-
fourth year of Our Reign.

God Save the Queen !

CONSTITUTIONAL DOCUMENTS.

Letters Patent.
Dated 29th
October, 1900.
Preamble.
Recites Imperial
Act,63&64Vict.,
c. 12, and
Proclamation of
17th September,
1900.

Office of
Governor-
General and
Commander-in-
Chief
constituted.

2. LETTERS PATENT passed under the Great Seal of the
United Kingdom, constituting the Office of Governor-General
and Commander-in-Chief of the Commonwealth of Australia.

Victoria, by the Grace of God of the United Kingdom of Great
Britain and Ireland Queen, Defender of the Faith, Empress
of India : To all to whom these Presents shall come,.
Greeting :

Whereas, by an Act of Parliament passed on the Ninth day of
July, 1900, in the Sixty-fourth year of Our Reign, intituled " An
Act to constitute the Commonwealth of Australia," it is enacted
that " it shall be lawful for the Queen, with the advice of the Privy
Council, to declare by Proclamation that, on and after a day
therein appointed, not being later than one year after the passing
of this Act, the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, and also, if Her Majesty
is satisfied that the people of Western Australia have agreed
thereto, of Western Australia, shall be united in a Federal
Commonwealth under the name of the Commonwealth of
Australia. But the Queen may, at any time after proclamation,
appoint a Governor-General for the Commonwealth " :

And whereas We did on the Seventeenth day of September One
thousand nine hundred, by and with the advice of Our Privy
Council, declare by Proclamation that, on and after the First
day of January One thousand nine hundred and one, the people
of New South Wales, Victoria, South Australia, Queensland, and
Tasmania, and also Western Australia, should be united in a
Federal Commonwealth under the name of the Commonwealth of
Australia : And whereas by the said recited Act certain powers,,
functions, and authorities were declared to be vested in the
Governor-General : And whereas We are desirous of making
eflfectual and permanent provision for the Office of Governor-
General and Commander-in-Chief in and over Our said Com-
monwealth of Australia, without making new Letters Patent
on each demise of the said Office : Now know ye that We have
thought fit to constitute, order, and declare, and do by these
presents constitute, order, and declare, that there shall be a
Governor-General and Commander-in-Chief (herein-after called the
Governor-General) in and over Our Commonwealth of Australia
(herein-after called Our said Commonwealth), and that the person
who shall fill the said Ofiice of Governor-General shall be from
time to time appointed by Commission under Our Sign Manual
and Signet. And We do hereby authorize and command Our

OFFICE OF THE GOVERNOR-GENERAL. 369

said Governor-General to do and execute, in due manner, all
things that shall belong to his said command, and to the trust
We have reposed in him, according to the several powers and Governor-
authorities granted or appointed him by virtue of " The Common- and^authorities?
wealth of Australia Constitution Act, 1900," and of these present
Letters Patent and of such Commission as may be issued to him
under Our Sign Manual and Signet, and according to such In-
structions as may from time to time be given to him, under Our
Sign Manual and Signet, or by Our Order in Our Privy Council,
or by Us through oue of our Principal Secretaries of State, and to
such laws as shall hereafter be in force in Our said Commonwealth.

II. There shall be a Great Seal of and for Our said Common- Great Seal.
wealth which our said Governor-General shall keep and use for
sealing all things whatsoever that shall pass the said Great Seal.
Provided that until a Great Seal shall be provided, the Private

Seal of our said Governor-General may be used as the Great Seal
of the Commonwealth of Australia.

III. The Governor-General may constitute and appoint, in Our Appointment of
name and on Our behalf, all such Judges, Commissioners, Justices JjJji&e8.<J"st»ce8,
of the Peace, and other necessary Officers and Ministers of Our

said Commonwealth, as may be lawfully constituted or appointed
by Us.

IV. The Governor-General, so far as "We Ourselves lawfully Suspension or
may, upon sufficient cause to him appearing, may remove from ofi^e7^ ^^^
his office, or suspend from the exercise of the same, any person
exercising any Office of Our said Commonwealth, under or by

virtue of any Commission or Warrant granted, or which may be
granted, by Us in our name or under Our authority.

V. The Governor-General may on Our behalf exercise all powers Summoning,
under the Commonwealth of Australia Constitution Act, 1900, or dissoiv^gMthe
otherwise in respect of the summoning, proroguing, or dissolving Pari^ment^^^*^
the Parliament of Our said Commonwealth.

VI. And whereas by "The Commonwealth of Australia Con-
stitution Act, 1900," it is amongst other things enacted, that We
may authorise the Governor-General to appoint any person or
persons, jointly or severally, to be his Deputy or Deputies within
any part of Our Commonwealth, and in that capacity to exercise,
during the pleasure of the Governor-General, such powers and
functions of the said Governor-General as he thinks fit to assign
to such Deputy or Deputies, subject to any limitations expressed
or directions given by Us : Now We do hereby authorise and
empower Our said Governor-General, subject to such limitations
and directions as aforesaid, to appoint any person or persons,

jointly or severally, to be his Deputy or Deputies within any part Power to ai)point
of Our said Commonwealth of Australia, and in that capacity to

2a

370

CONSTITUTIONAL DOCUMENTS.

Succession to
the Government

Proviso. Oaths
of office to be
taken.

Officers and
others to obey
and assist the
Governor-
General.

Power reserved
to Her Majesty
to revoke, alter,
or amend the
present Letters
Patent.

Publication of
Letters Patent.

exercise, during his pleasure, such of his powers and functions as
he may deem it necessary or expedient to assign to him or them :
Provided always, that the appointment of such a Deputy or
Deputies shall not aflFect the exercise by the Governor-General
himself of any power or function.

VII. And we do hereby declare Our pleasure to be that, in the
event of the death, incapacity, removal, or absence of Our said
Governor-General out of our said Commonwealth, all and every the
powers and authorities herein granted to him shall, until Our
further pleasure is signified therein, be vested in such person as
may be appointed by Us under Our Sign Manual and Signet to be
Our Lieutenant-Governor of Our said Commonwealth ; or if there
shall be no such Lieutenant-Governor in Our said Commonwealth,
then in such person or persons as may be appointed by Us under
Our Sign Manual and Signet to administer the Government of the
same. No such powers or authorities shall vest in such Lieutenant-
Governor, or such other person or persons, until he or they shall
have taken the oaths appointed to be taken by the Governor-
General of Our said Commonwealth, and in the manner provided
by the Instructions accompanying these Our Letters Patent.

VIIL And We do hereby require and command all Our Officers
and Ministers, Civil and Military, and all other the inhabitants
of Our said Commonwealth, to be obedient, aiding, and assisting
unto Our said Governor-General, or, in the event of his death,
incapacity, or absence, to such person or persons as may, from
time to time, under the provisions of these Our Letters Patent,
administer the Government of Our said Commonwealth.

IX. And We do hereby reserve to Ourselves, Our heirs and
successors, full power and authority from time to time to revoke,
alter, or amend these Our Letters Patent as to us or them shall
seem meet.

X. And We do further direct and enjoin that these Our Letters
Patent shall be read and proclaimed at such place or places as Our
said Governor-General shall think fit within Our said Common-
wealth of Australia.

In Witness whereof We have caused these Our Letters to be
made Patent. Witness Ourself at Westminster, the twenty-ninth
day of October, in the Sixty-fourth Year of Our Reign.

By Warrant under the Queen's Sign Manual.

MUIR MACKENZIE.

Letters Patent constituting the Office of

Governor-General and Commander-in-Chief of the
Commonwealth of Australia.

INSTRUCTIONS TO GOVERNOR-GENERAL. 371

3. INSTRUCTIONS passed under the Royal Sign Manual
and Signet to the Governor-General and Commander-in-
Chief of the Commonwealth of Australia.

Victoria E.I.
Instractions to our Governor-General and Commander-in-Chief Dated 29th
in and over our • Commonwealth of Australia, or, in his ° '
absence, to our Lieutenant-Governor, or the Officer for the
time being administering the Government of our said
Commonwealth.

Given at our Court at Saint James's, this Twenty-ninth day of
October, 1900, in the Sixty-fourth year of our reign.

Whereas by certain Letters Patent bearing even date herewith. Preamble.
We- have constituted, ordered, and declared that there shall be a
Governor-General and Commander-in-Chief (therein and herein- Recites Letters
after called the Governor-General), in and over Our Commonwealth stitutingThe
•of Australia (therein and hereinafter called Our said Common- Q^^|j.nor-
wealth). And We have thereby authorised and commanded Our General,
said Governor-General to do and execute in due manner all things
that shall belong to his said command, and to the trust We have
reposed in him, according to the several powers and authorities
granted or appointed him by virtue of the said Letters Patent>
and of such Commission as may be issued to him under Our Sign
Manual and Signet, and according to such instructions as may from
time to time be given to him, under Our Sign Manual and Signet,
or by Our Order in Our Privy Council, or by Us through one of
Our Principal Secretaries of State, and to such laws as shall here-
after be in force in our said Commonwealth. Now therefore. We
do, by these Our Instructions under Our Sign Manual and Signet,
declare our pleasure to be as follows :

I. Our first appointed Governor-General shall, with all due Publication of
solemnity, cause Our Commission, under Our Sign Manual and General's™"^"
Signet, appointing Our said Governor-General, to be read and Commission,
published in the presence of Our Governors, or in their absence of

•Our Lieutenant-Governors of Our Colonies of New South Wales,
Victoria, South Australia, Queensland, Tasmania, and Western
Australia, and such of the members of the Executive Council,
Judges, and members of the Legislatures of Our said Colonies as
are able to attend.

II. Our said Governor-General of Our said Commonwealth shall Oaths to be

• 111 k. j^ 1 taken by first

take the Oath of Allegiance m the form provided by an Act passed Govemor-
in the Session holden in the thirty-first and thirty-second years ^^"^^*^' «tc.

372

CONSTITUTIONAL DOCUMENTS.

Imperial Act,
81 k 32 Vict
c. 72.

Publication of
Governor-
General's
Commission
after the first
appointment.

Oaths to be
taken by
Governor-
General, etc.
after the first
appointment.

Imperial Act,
31 & 32 Vict.
C.72.

Oaths to be
administered by
the Governor-
General.

Governor-
General to
communicate
Instructions to
the Executive
CounciL

Laws sent home
to have marginal
abstracts.

of Our Reign, intituled "An Act to amend the law relating to-
Promissory Oaths," and likewise the usual Oath for the due execu-
tion of the office of Our Governor-General in and over Our said
Commonwealth, and for the due and impartial administration of
justice, which Oaths Our said Governor and Commander-in-Chief
of Our Colony of New South Wales, or, in his absence, our Lieu-
tenant-Governor or other officer administering the Government of
Our said Colony, shall and he is hereby required to tender and
administer unto him.

III. Every Governor-General, and every other officer appointed
to administer the Government of Our said Commonwealth after
Our said first appointed Governor-General, shall, with all due
solemnity, cause Our Commission, under our Sign Manual and
Signet, appointing our said Governor-General, to be read and
published in the presence of the Chief Justice of the High Court
of Australia, or some other Judge of the said Court.

IV. Every Governor-General, and every other officer appointed
to administer the Government of Our said Commonwealth after
Our said first appointed Governor-General, shall take the Oath of
Allegiance in the form provided by an Act passed in the Session
holden in the thirty-first and thirty-second years of Our Reign,
intituled " An Act to amend the law relating to Promissory Oaths,"
and likewise the usual Oath for the due execution of the office of
Our Governor-General in and over Our said Commonwealth, and
for the due and impartial administration of Justice, which Oaths
the Chief Justice of the High Court of Australia, or some other
Judge of the said Court, shall and he is hereby required to tender
and administer unto him or them.

V. And We do authorise and require Our said Governor-General
from time to time, by himself or by any other person to be autlior-
ized by him in that behalf, to administer to all and to every person
or persons, as he shall think fit, who shall hold any office or place
of trust or profit in our said Commonwealth, the said Oath of
Allegiance, together with such other Oath or Oaths as may from
time to time be prescribed by any laws or statutes in that behalf
made and provided.

VI. And We do require Our said Governor-General to communi-
cate forthwith to the Members of the Executive Council for Our
said Commonwealth these Our Instructions, and likewise all such
others, from time to time, as he shall find convenient for Our
service, to be imparted to them.

VII. Our said Governor-General is to take care that all laws-
assented to by him in Our name, or reserved for the signification
of Our pleasure thereon, shall, when transmitted by him, be fairly
abstracted in the margins, and be accompanied, in such cases as.

INSTRUCTIONS TO OOVERNOR-GENERAL. 373

may seem to him necessary, with such explanatory observations as

may be required to exhibit the reasons and occasions for proposing

such laws, and he shall also transmit fair copies of the Journals Journals and

Minutes,
and Minutes of the proceedings of the Parliament of our said

Commonwealth, which he is to require from the clerks or other

proper officers in that behalf, of the said Parliament.

VIII. And We do further authorize and empower Our said Grant of
Governor-General, as he shall see occasion, in Our name and on

Our behalf, when any qrime or offence against the laws of Our
Commonwealth has been committed, for which the offender may
be tried within Our said Commonwealth, to grant a pardon to any
accomplice in such crime or offence, who shall give such information
as shall lead to the conviction of the principal offender, or of any
one of such offenders, if more than one ; and further, to grant to
any offender convicted of any such crime or offence in any Court,
or before any Judge, Justice, or Magistrate, within Our said Com-
monwealth, a pardon, either free or subject to lawful conditions,
or any respite of the execution of the sentence of any such offender,
for such period as to Our said Governor- General may seem fit,
and to remit any fines, penalties, or forfeitures which may become Remission of
due and payable to Us. Provided always, that Our said Governor-
General shall not in any case, except where the offence has been Proviso—
of a political nature, make it a condition of any pardon or remission from the
of sentence that the offender shall be banished from or shall absent pSitT^^^
himself from Our said Commonwealth. And We do hereby direct Exception—
and enjoin that Our said Governor-General shall not pardon or ^ggnggg^
reprieve any such offender without first receiving in capital cases
the advice of the Executive Council for Our said Commonwealth,
and in other cases the advice of one, at least, of his Ministers, and
in any case in which such pardon or reprieve might directly affect
the interests of Our Empire, or of any country or place beyond the
jurisdiction of the Government of Our said Commonwealth, Our
said Governor-General shall, before deciding as to either pardon or
reprieve, take those interests specially into his own personal con-
sideration, in conjunction with such advice as aforesaid.

IX. And whereas great prejudice may happen to Our service Governor-
and to the security of Our said Commonwealth by the absence of absence.^
Our said Governor-General, he shall not, upon any pretence what-
ever, quit Our said Commonwealth without having first obtained

leave from us for so doing, under Our Sign Manual and Signet, or
through one of our principal Secretaries of State. V. R. I.

374

CONSTITUTIONAL DOCUMENTS.

Dated 29th
October, 1900.

Appointment of
the Right Hon.
the Earl of
Hopetoun, P.O.,
K.T., G.C.M.G.,
G.C.V.O., as
Governor-
General.

Recites Letters
Patent con-
stituting the
Office of
Governor-
General.

Officers, etc., to
obey the
Governor-
GeneraL

4. COMMISSION passed under the Royal Sign Manual and
Signet, appointing the Eight Honourable The Earl of
Hopetoun, P.O., K.T., G.C.M.G., G.C.V.O., to he
Governoi'-Genefral and Commander in-Chief of the
Commonwealth of Australia.

Victoria R.
Victoria, by the Grace of God of the United Kingdom of Great
Britain and Ireland Queen, Defender of the Faith, Eiupresa
of India ; To Our Right Trusty and Right Well-beloved
Cousin and Councillor, John Adrian Louis, Earl of Hopetoun^
Knight of Our Most Ancient and Most Noble Order of the-
Thistle, Knight Grand Cross of Our Most Distinguished
Order of Saint Michael and Saint George, Knight Grand
Cross of the Royal Victorian Order, Greeting.

We do, by this Our Commission under Our Sign Manual and Signet,
appoint you, the said John Adrian Louis, Earl of Hopetoun, to be,,
during Our pleasure, Our Governor-General and Commander-in-
Chief in and over our Commonwealth of Australia, with all the
powers, rights, privileges, and advantages to the said Office
belonging or appertaining.

II. And we do hereby authorize, empower, and command you
to exercise and perform all and singular the powers and directions
contained in Our Letters Patent under the Great Seal of Our
United Kingdom of Great Britain and Ireland, b'earing date at
Westminster the Twenty-ninth day of October, 1900, constituting
the said Office of Governor-General and Commander-in-Chief, or
in any other Our Letters Patent adding to, amending, or substituted
for the same aud according to such Orders and Instructions as you
may receive from Us.

III. And We do hereby command all and singular Our Officers,
Ministers, and loving subjects in Our said Commonwealth, and all
others whom it may concern, to take due notice hereof, and to give
their ready obedience accordingly.

Given at our Court of Saint James's this Twenty-ninth day of
October, 1900, in the Sixty -fourth year of Our Reign.
By Her Majesty's Command,

J. Chamberlain.
Commission appointing

The Right Honourable the Earl of Hopetoun, P.C., K.T.^
G.C.M.G., G.C.V.O., to be Governor-General and Com-
mander-in-Chief of the Commonwealth of Australia.

OFFICE OF GOVERNOR OF VICTORIA. 375

(b.) the states.

[The following instruments were issued in relation to the State
of Victoria. Similar instruments were issued in relation to each
of the other States.]

Victoria.
1. LETTERS PATENT passed under the Great Seal of the Letters Patent,

■"^ . "^ dated 29th

United Kingdom constituting the Office of Governor 0/ October, 1900.
the State of Victoria and its Dependencies, in the Common-
wealth of Australia.
Victoria, by the Grace of God of the United Kingdom of Great
Britain and Ireland Queen, Defender of the Faith, Empress
of India : To all to whom these presents shall come,
Greeting.

Whereas, by certain Letters Patent, under the Great Seal of Our Preamble.
United Kingdom of Great Britain and Ireland, bearing date at
Westminster the Twenty-first day of February, 1879, We did Recites Letters
constitute the Office of Governor and Commander in -Chief in and February, 1879.
over Our Colony of Victoria as therein described, and its Depen-
dencies : And whereas, in virtue of the provisions of the Common-
wealth of Australia Constitution Act, 1900, and of Our Proclamation Recites imperial
issued thereunder, by and with the advice of Our Privy Council vict., c. 12,
on the Seventeenth day of September, 1900, We have by certain fS s^^mber,
Letters Patent under the said Great Seal of Our United Kingdom ipoo, and Letters

° Patent of 29th

of Great Britain and Ireland, bearing even date herewith, made October, 1900.
provision for the Office of Governor-General and Commander-in-
Chief in and over our Commonwealth of Australia : And whereas
it has become necessary to make permanent provision for the
Office of Governor in and over Our State of Victoria and its
Dependencies, in the Commonwealth of Australia, without making
new Letters Patent on each demise of the said Office. Now know
ye that We do by these presents revoke and determine the said Revocation of
first-recited Letters Patent of the Twenty-first day of February, of 2 1st February,
1879, and everything therein 'contained, from and after the pro- ^^''^•
clamation of these our Letters Patent as hereinafter provided :
And further know ye that We do by these presents constitute. Office of
order, and declare that there shall be a Governor in and over Our constituted.
State of Victoria (comprising the territories bounded on the west Boundaries,
by Our State of South Australia, on the south by the sea, and on
the east and north by a straight line drawn from Cape Howe to
the nearest source of the River Murray, and thence by the course
of that river to the Eastern Boundary of Our State of South

376

CONSTITUTIONAL DOCUMENTS.

Governor's
powers and
authorities.

Publication of

Governor's

Commission.

Oath to be taken
by Governor.

Imperial Act, 31
&32Vict., c. 72.

Public Seal.

Executive
Council :
constitution of.

Grant of lands.

Australia) and its Dependencies, in the Commonwealth of Australia
(which said State of Victoria and its Dependencies are hereinafter
called the State), and that appointments to the said Office shall
be made by Commission under Our Sign Manual and Signet.

II. We do hereby authorize, empower, and command Our said
Governor to do and execute all things that belong to his said
Office, according to the tenor of these Our Letters Patent and of
such Commission as may be issued to him under Our Sign Manual
and Siguet, and according to such Instructions as may from time
to time be given to him under Our Sign Manual and Signet, or by
Our Order iu Our Privy Council, or by Us, through one of Our
Principal Secretaries of State, and to such Laws as are now or
shall hereafter be in force in the State.

III. We do also by these Our Letters Patent declare Our will
and pleasure as follows : —

IV. Every person appointed to fill the Office of Governor shall
with all due solemnity, before entering (»n any of the duties of his
Office, cause the Commission appointing him to be Governor to be
read and published at the seat of Government, in the pr. sence of
the Chief Justice, or some other Judge of the Supreme Court of
the State, and of the Members of the Executive Council thereof,
which being done, he shall then and there take before them the
Oath of Allegiance, in the form provided by an Act passed in the
Session holden in the Thirty-first and Thirty-second years of Our
Reign, intituled an Act to amend the Law relating to Promissory
Oaths ; and likewise the usual Oath for the due execution of the
Office of Governor, and for the due and impartial admiuistration
of justice : which Oaths the said Chief Justice or Judge is hereby
required to administer.

V. The Governor shall keep and use the Public Seal of the State
for sealing all things whatsoever that shall pass the said Public
Seal : and until a Public Seal shall be provided for the State the
Public Seal formerly used in Our Colony of Victoria shall be used
as the Public Seal of the State.

VI. There shall be an Executive Council for the State, and the
said Council shall consist of such persons as were, immediately
before the coming into force of these Our Letters Patent, Members
of the Executive Council of Victoria, or as may at any time be
Members of the Executive Council for Our said State in accord-
ance with any Law enacted by the Legislature of the State, and of
such other persons as the Governor shall, from time to time, in
Our name and on Our behalf, but subject to any Law as aforesaid,
appoint under the Public Seal of the State to be Members of Our
said Executive Council for the State.

VII. The Governor, in Our name and on Our behalf, may make

OFFICE OF GOVERNOR OF VICTORIA. 377

a,nd execute, under the said Public Seal, grants and dispositions of
any land which may be lawfully granted and disposed of b}' Us,
within the State.

VIII. The Governor may constitute and appoint, in Our name Appointment of

Judges, Justices,

and on Our behalf, all such Judges, Commissioners, Justices of the etc.
Peace, and other necessary Officers and Ministers of the State
as may be lawfully constituted or appointed by Us.

IX. When any crime or offence has been committed within the Grant of

" pardons.

State against the laws of the State, or for which the oflfender may

be tried therein, the Governor may as he shall see occasion, in

•Our name and on Our behalf, grant a pardon to any accomplice in

such crime or offence who shall give such information as shall lead

to the conviction of the principal offender, or of any one of such

offenders if more than one ; and further, may grant to any offender

•convicted in any Court of the State, or before any Judge or other

Magistrate of the State, within the State, a pardon, either free or

subject to lawful conditions, or any remission of the sentence

passed on such offender, or any respite of the execution of such

sentence for such period as the Governor thinks fit ; and further

may remit any fines, penalties, or forfeitures due or accrued to Us : Remission of

Provided always that the Governor shall in no case, except where

the offence has been of a political nature unaccompanied by any Political

other grave crime, make it a condition of any pardon or remission °

of sentence that the offender shall absent himself or be removed Proviso, Banish-

from the state. t'^^^^"^""

X. The Governor may, so far as We Ourselves lawfully may, suspension or
upon sufficient cause to him appearing, remove from his office, office^^^ *'^''"*
or suspend from the exercise of the same, any person exercising

any office or place under the State, under or by virtue of any
Commission or Warrant granted, or which may be granted, by Us,
in Our name, or under Our authority.

XI. The Governor may exercise all powers lawfully belonging to Summoning,
Us in respect of the summoning, proroguing, or dissolving any dlssoMng^any
Legislative Body, which now is or hereafter may be established gojy^**^^®
within Our said State.

XII. In the event of the death, incapacity, or removal of the theGovernment.
Governor, or of his departure from the State, Our Lieutenant- Lieutenant-
Governor, or, if there be no such Officer in the State, then such

person or persons as We may appoint, under Our Sign Manual and Administrator.
Signet, shall during Our pleasure, administer the Government of Proviso,
the State, first taking the Oaths hereinbefore directed to be taken Governor" etc.,
by the Governor, and in the manner herein prescribed : which **l,^H® 9^*^'^^ °^

. ^ oflQce before

being done, We do hereby authorize, empower, and command Our administering
Lieutenant-Governor, and every other such Administrator as
aforesaid, to do and execute during Our pleasure all things that

378

CONSTITUTIONAL DOCUMENTS.

Dutien and
authorities
under Letters
Patent

Governor may
appoint a
Deputy during
his temporary
absence from
seat of Govern-
ment or from
the State.

Ofl&cers and
others to obey
and assist the
Governor.

Power reserved
to Her Majesty
to revoke, alter,
or amend the
present Letters
Patent.

Publication of
Letters Patent.

belong to the Office of Governor according to the tenor of these
Our Letters Patent, and according to Our Instructions as aforesaid,
and the Laws of the State.

XIII. In the event of the Governor having occasion to be
temporarily absent for a short period from the Seat of Government
or from the State, he may in every such case, by an Instrument
under the Public Seal of the State, constitute and appoint Our
Lieutenant-Governor, or, if there be no such Officer, or if such
Officer be absent or unable to act, then any other person to be
Ids Deputy during such temporary absence, and in that capacity
to exercise, perform, and execute for and on behalf of the Governor
during such absence, but no longer, all such powers and authorities,
vested in the Governor, by these Our Letters Patent, as shall
in and by such Instrument be specified and limited, but no others.
Provided, nevertheless, that by the appointment of a Deputy a»
aforesaid, the power and authority of the Governor shall not be
abridged, altered, or in any way affected, otherwise than We may
at any time hereafter think pro])er to direct.

XIV. And We do hereby require and command all our Officers
and Ministers, and all other the inhabitants of the State, to be
obedient, aiding, and assisting unto the Governor, or to such
person or persons as may from time to time, under the provision
of these our Letters Patent, administer the Government of the
State.

XY. And We do hereby reserve to Ourselves, our heirs and
Successors, full power and authority from time to time to revoke,
alter, or amend these our Letters Patent as to Us or Them shall
seem meet.

XVI. And We do direct and enjoin that these Our Letters-
Patent shall be read and proclaimed at such place or places within
Our said State as the Governor shall think fit.

In Witness whereof We have caused these Our Letters to be
made Patent. Witness Ourself at Westminster, this Twenty-ninth
day of October, in the Sixty-fourth year of Our Eeign.

By Warrant under the Queen's Sign Manual.

MiriR Mackenzie.

INSTRUCTIONS TO GOVERNOR OF VICTORIA. 379

2. INSTRUCTIONS passed under the Royal Sign Manual
and Signet to the Governor of the State of Victoria and
its Dependencies, in the Commonwealth of Australia.

Victoria E.I.
Instructions to Our Governor in and over Our State of Victoria Dated 29th
and its Dependencies, in the Commonwealth of Australia, or to Our
Lieutenant-Governor, or other Officer for the time being adminis-
tering the Government of Our said State and its Dependencies.

Given at Our Court at St. James's, this Twenty-ninth day of
October, 1900, in the Sixty-fourth year of Our Eeign.

Whereas by certain Letters Patent bearing even date herewith. Preamble.
We have constituted, ordered, and declared that there shall be a Recites Letters.
Governor in and over Our State of Victoria and its Dependencies, stituting the
in the Commonwealth of Australia (which said State of Victoria Governor,
and its Dependencies are therein and hereinafter called the State) :

And whereas we have therein authorized and commanded the
Governor to do and execute all things that belong to his said Office,
according to the tenor of Our said Letters Patent, and of such
Commission as may be issued to him under Our Sign Manual and
Signet, and according to such Instructions as may from time to time
be given to him under Our Sign Manual and Signet or by Our
Order in Our Privy Council, or by Us through one of Our Principal
Secretaries of State, and to such Laws as are now or shall hereafter
be in force in the State :

And whereas We did issue certain Instructions under Our Sign Recites
Manual and Signet to Our Governor and Commander-in-Chief in gth July, 1892.
and over Our Colony of Victoria and its Dependencies bearing date
the Ninth day of July, 1892 :

Now know you that We do hereby revoke the aforesaid Instruc- Revokes afore-
tions, and We do by these Our Instructions under Our Sign Manual
and Signet direct and enjoin and declare Our will and pleasure as
follows : —

I. In these Our Instructions, unless inconsistent with the context, interpretation,
the term "the Governor" shall include every person for the time

being administering the Government of the State, and the term
" the Executive Council " shall mean the members of Our Executive
Council for the State who are for the time being responsible advisers
of the Governor.

II. The Governor may, whenever he thinks fit, require any Oatha to be
person in the public service to take the Oath of Allegiance, together

with such other Oath or Oaths as may from time to time be pre-
scribed by any Law in force in the State. The Governor is to

380

CONSTITUTIONAL DOCUMENTS.

<3overnor to
communicate

Instructions to

Executive

Council.

<3overnor to
preside.

Governor to
appoint a
President.

Senior Member
to preside in
the absence of
the Governor
and President.

Seniority of
Members.

■Quorum,

<5ovemor to
take advice of
Executive
•Council.

Description of
Bills not to be
assented to.

administer such Oaths or cause them to be administered by some
Public Officer of the State.

III. The Governor shall forthwith communicate these Our In-
structions to the Executive Council, and likewise all such others,
from time to time, as he shall find convenient for Our service to
impart to them.

IV. The Governor shall attend and preside at the meetings of
the Executive Council, unless prevented by some necessary or
reasonable cause, and in his absence such member as may be
appointed by him in that behalf, or in the absence of such member
the senior member of the Executive Council actually present, shall
preside ; the seniority of the members of the said Council being
regulated according to the order of their respective appointments
as members thereof.

V. The Executive Council shall not proceed to the despatch of
business unless duly summoned by authority of the Governor nor
unless two members at the least (exclusive of the Governor or of
the member presiding) be present and assisting throughout the
whole of the meetings at which any such business shall be
despatched.

VI. In the execution of the powers and authorities vested in
him, the Governor shall be guided by the advice of the Executive
Council, but if in any case he shall see sufficient cause to dissent
from the opinion of the said Council, he may act in the exercise of
his said powers and authorities in opposition to the opinion of the
Council, reporting the matter to Us without delay, with the reasons
for his so acting.

In any such case it shall be competent to any Member of the said
Council to require that there be recorded upon the Minutes of the
Council the grounds of any advice or opinion that he may give
upon the question.

VII. The Governor shall not, except in the cases hereunder
mentioned, assent in Our name to any Bill of any of the following
classes :

1. Any Bill for the divorce of persons joined together in holy
matrimony.

2. Any Bill whereby any graut of land or money or other
donation or gratuity may be made to himself.

3. Any Bill affecting the currency of the State.

4. Any Bill the provisions of which shall appear inconsistent
with obligations imposed upon Us by Treaty.

5. Any Bill of an extraordinary nature and importance, whereby
Onr prerogative or the rights and property of Our subjects not
residing in the State, or the trade and shipping of the United
Kingdom and its Dependencies, may be prejudiced.

INSTRUCTIONS TO GOVERNOR OF VICTORIA. 381

6. Any Bill containing provisions to which Our assent has been
once refused, or which have been disallowed by Us ;

Unless he shall have previously obtained Our Instructions upon powers in
such Bill through one of Our Principal Secretaries of State, or "^§^^^* ^*^®^*
unless such Bill shall contain a clause suspending the operation of
such Bill until the signification in the State of Our pleasure there-
upon, or unless the Governor shall have satisfied himself that an
urgent necessity exists requiring that such Bill be brought into
immediate operation, in which case he is authorized to assent in
Our name to such Bill, unless the same shall be repugnant to the
law of England, or inconsistent with any obligations imposed upon
Us by Treaty. But he is to transmit to Us by the earliest oppor-
tunity the Bill so assented to, together with his reasons for assent-
ing thereto.

VIII. The Governor shall not pardon or reprieve any offender Regulation of
without first receiving in capital cases the advice of the Executive ^'^^^^'^ P^'' °^-
Council, and in other cases the advice of one, at least, of his Mini-
sters ; and in any case in which such pardon or reprieve might

directly afi'ect the interests of Our Empire, or of any country or
place beyond the jurisdiction of the Government of the State, the
Governor shall, before deciding as to either pardon or reprieve,
take those interests specially into his own personal consideration
in conjunction with such advice as aforesaid.

IX. All Commissions granted by the Governor to any persons Judges, etc, to
to be Judges, Justices of the Peace, or other officers shall, unless during
otherwise provided by law, be granted during pleasure only. pleasure.

X. The Governor shall not quit the State without having first Governor's
obtained leave from Us for so doing under Our Sign Manual and
Signet, or through one of our Principal Secretaries of State, except Temporary
for the purpose of visiting the Governor of any neighbouring State

or the Governor-General, for periods not exceeding one month at
any one time, nor exceeding in the aggregate one month for every
year's service in the State.

XI. The temporary absence of the Governor for any period not Governor's
exceeding one month shall not, if he have previously informed the departure from.
Executive Council, in writing, of his intended absence, and if he interpretation
have duly appointed a Deputy in accordance with Our said Letters clause.
Patent, be deemed a departure from the State within the meaning

of the said Letters Patent. V. E. I.

382 CONSTITUTIONAL DOCUMENTS.

3. COMMISSION passed under the Royal Sign Manual and
Signet, appointing Sir John Madden, K.G.M.G., Chief
Justice of Victoria, to be Lieutenant-Governor of the State
of Victoria and its Dependencies, in the Commonwealth
(f Australia.

Victoria R.
Dated '29th Victoria, by the Grace of God of the United Kingdom of Great

October, 1900. _^ . ®

Britain and Ireland Queen, Defender of the Faith, Empress
of India : To Our Trusty and Well-beloved Sir John Madden,
Knight Commander of Our Most Distinguished Order of
Saint Michael and Saint George, Chief Justice of the Supreme
Court of Victoria, Greeting.
Appoiiitnient of We do, by this Our Commission under Our Sign Manual and Signet,
K.C.M.G., to°be appoint you, the said Sir John Madden, to be during Our pleasure
€ov"ern"oT*" ^^^ Lieutenant-Governor of Our State of Victoria and its Depend-
encies, in the Commonwealth of Australia, with all the powers,
rights, privileges, and advantages to the said Office belonging or
appertaining.
Gov^rn^"^^\^^ ^^' '^^^ further, in case of the death, incapacity, or removal of
during Our Govemor of Our said State, or of his departure from Our said

absence. State, We do hereby authorize and require you to administer the

Government thereof, with all and singular the powers and authori-
Recites Letters ties contained in Our Letters Patent under the Great Seal of Our
stituting Office United Kingdom of Great Britain and Ireland, bearing date at
of Governor. Westminster the Twenty-ninth day of October, 1900, constituting
the Office of Governor in and over Our said State of Victoria and
Powers and its Dependencies, in Our Commonwealth of Australia, or in any
other Our Letters Patent adding to, amending, or substituted for
the same, and according to such Instructions as Our said Governor
for the time being may receive from Us, or through one of Our
Principal Secretaries of State, and according to such Laws as are
now or shall hereafter be in force in Our said State.
Oommission of HI, And We do hereby appoint that this Our present Commis-
superslded. ' sion shall supersede Our Commission under Our Sign Manual and
Signet bearing date the Twenty-uinth day of April, 1899, appointing
you the said Sir John Madden to be Lieutenant-Governor of Our
Colony of Victoria and its Dependencies.
Officers, etc., to IV. And We do hereby command all and singular Our Officers,
jyjinisters, and loving subjects in Our said State and its Depend-
encies, and all others whom it may concern, to take due notice
hereof, and to give their ready obedience accordingly.

Given at Our Court at Saint James's, this Twenty-ninth day of
October, 1900, in the Sixty-fourth year of Our Eeign.
By Her Majesty's Command,

J. Chamberlain.

GENEEAL INDEX.

Absentee Tax, 297.

^'Absolutely free," 203.

Accounts, Public, audit of, 187.

Acts of Imperial Parliament, see
Imperial Parliament.

Adelaide Convention, 43, 46.

Administration of Justice, legislative
powers of Commonwealth, 149.

^'Administrative," suggested alterna-
tive for " Executive," 212.

Administrative Departments, exclu-
sive power over those transferred,
162 ; established, 230 ; transferred
to Commonwealth, 231.

Administrative Services, exclusive
power over those transferred to
Commonwealth, 141 ; those not
transferred to Commonwealth, 142.

Admiralty, Colonial Courts of, 11,
251 ; federal jurisdiction, 273 ;
convictions in, 289.

Adult suffrage, 108.

Advisory Opinions, proposed in
United States, 235 ; in Australia,
236, 242; in England and United
States, 240, 241 ; in Canada, 241.

Agreement, of Colonies, 62 ; founda-
tion of Constitution, 76.

Aliens, legislative power of Common-
wealth, 144 ; their admission, 306.

Alteration (or amendment) of Com-
monwealth Constitution, 316-323 ;
meaning of, 320 ; facility of, 332.

"Among the States," meaning of,
198.

Anson, Sir W., Law and Custom of
the Constitution, 114, 210, 223; his
article in Law Quarterly Hevietv,
321.

Anstey, T. C, Competence of Colonial
Legislatures, etc., 11.

Appeal, General Court of, proposals
for, 21, 34.

Appeal to Privy Council, when alter-
native to appeal to High Court,
252; from Colonies and States, how
regulated, 253 ; from States, present
conditions of, 253, 256 ; in criminal
cases, 254 ; whether State Parlia-
ment can impair prerogative, 254 ;
on removal of Colonial Judge, 277,
278.

Appeal to Queen in Council, objections
of Law Officers to Clause 74 in
Draft Constitution of 1900, 51.

Appeals to Privy Council, from High
Court of Australia, 247 ; in Con-
stitutional cases, ibid. ; special
leave to appeal from High Court,
248 ; special leave to appeal from
State Courts, 254.

Appellate Jurisdiction, of High Court
of Australia, see High Court of
Australia ; of Queen in Council, see
Appeals to Privy Council.

Appropriation, by law, 187 ; annual
and specific, 190; permanent, 192.

Appropriation Bill, rejected in Col-
onies, 122.

Appropriation Bills, procedure in, 118.

Astronomy, 142.

Attorney-General, position of, 74.

Audit of Public Accounts, 187.

Australia, "Monroe Doctrine" of,
31 ; general conditions of, 53; com-
plaint of sacrifice of interests of,
56 ; character of politics in, 57 ;
land in, 72; democracy in, 327 et
seq. ; political experimentalism, 329 ;
centralisation in, 330.

Australian Natives Association, rela-
tion to federal movement, 44.

Baldwin, Professor, article in Har-
vard Law JRevieio, 312.
Banking, 145.

384

GENERAL INDEX.

Bankruptcy, 146 ; Imperial Law in
Colonies, 3; Imperial and Common-
wealth Laws, 169.

Barton, P]dmund (N. S. Wales), 42,
43, 45, 46, 50, 229.

Beacons, 142.

Berry, Sir Graham (Victoria), 32,
34.

Bills of Exchange, 146.

Blackstone, Commentaries, 2, 92.

Bhie Book (\%9o), 147.

Boothby, Mr. Justice, 278.

Boundaries, of States, suggested re-
adjustment of, 310 ; alteration of,
315 ; protection in alteration of
Constitution, 322 ; see also Colonial
Boundaries Act.

Bounties, 195.

Bourinot, Sir John, Transactions
of the Royal Society of Canada,
43.

Bowen, Lieut., Commandant of Van
Diemen's Land, 13.

Braddon, Sir Edward, "the Braddon
Clause," 47, 49; "the Braddon
Blot," 191.

Brougham, Lord, 110, 111.

Brown, Professor Jethro, The New
Democracy, 104.

Bryce, James, American ConMitution,
65, 239, 240, 317, 326, 330; his
speech on Home Rule, 321.

Buckingham, Duke of, 26.

Buoys, 142.

Burgess, Professor, Political Science
and Constitutional Law, 64, 68, 126,
177, 301, 317, 365.

Cabinet System, not established in
Constitution Statutes, 212 ; see also
Responsible Government.

Canada, legislative authorities in, 6 ;
Australasian Colonies compared
with Provinces, 53 ; Crown in
Provincial Governments, 74, 287 ;
legislative power in, 86 ; House of
Commons, 101 ; exclusive powers
in, 135 ; Imperial and Dominion
powers, 169 ; pardoning power,
219 ; executive power in Crown,
220; Privy Council in, 226; checks
on Provincial Legislatures, 235 ;
intervention of Dominion or Pro-
vince in Constitutional cases, 239 ;
procedure for determination of Con-
stitutional questions, 241 ; alterna-
tive right of appeal, 252; Provincial
Constitutions established by British
North America Act, 286 ; amend-
ment of Constitution, 316 ; circum-

stances of confederation of, 325 ;
Commonwealth matters resemble
Dominion matters, 326.

Capital, influence of, in Australian
politics, 48, 58 ; opposition of Syd-
ney to Commonwealth Constitution,,
48.

Census, 142.

Chalmers, Opinions of Eminent Law-
yers, 86.

Chamberlain, Joseph, 52.

Charges, ou Commonwealth revenue,^
190.

Chartei's, sources of Colonial Consti-
tutions, 5.

Clark, Justice A. Inglis (Tasmania),
42, 45.

Coinage, State may not coin money,
149.

Coleridge, Lord, 110.

Collier, Sir Robert, 175, 277.

Collusive Actions, 237.

Colonial Boundaries Act, powers-
under, 9 ; not applicable to the
States, 63 ; Commonwealth a self-
governing Colony under, 292.

Colonial Conference, 1887, 39.

Colonial Constitutions, sources of,
1-18 ; when legislatures may alter,
8 ; character of, 76 ; no separation
of powers, 86 ; compared with
Commonwealth, 117, 217 ; respon-
sible government in, 117, 227;
Cabinet System in, 212.

Colonial Courts, conflicts with execu-
tive and legislature, 276.

Colonial Governments, no corporate
existence, 214.

Colonial Judges, see Judges.

Colonial Laws, sources of, 1-18; Laws-
of Parliament of Canada are, 170 ;
Laws of Parliament of Common-
wealth are, ibid.
Colonial Laws Validity Act, see

Table of Statutes.
Colonial Legislature, powers of, ta
vary Imperial Laws, 4; Parliament
of Canada is, 170; Parliament of
Commonwealth is, 170; defined,
292.
Colonial Legislatures, as sources of
Colonial Law, 1-18; "local and
territorial," 7, 9; plenary powers
of, 77, 80, 86 ; nature of powers,.
129 ; power over copyright, 147 ;
subordination of, 234, 235.
Colonial Parliaments, powers of taxa-
tion, 299.
Colonial Policy of Lord John Rtissell's-
Administration, 20.

GENERAL INDEX.

385

Colonies, agreement of, 62 ; not
corporate bodies, 73 ; separate law
districts, 149 ; corporate existence
in Crown, 214; military affairs in,
222; Executive Council in, 225,
226 ; features of responsible govern-
ment in, 227, 228.

Colony, Commonwealth is, 170; de-
fined, 292.

Coloured Races, special laws for, 144.

Commander-in-Chief, Colonial Gov-
ernors as, 221 ; Governor-General
as, ibid.

Commerce, see Trade and Commerce.

Common Law of England, in force in
Colonies, 1.

Commonwealth, proclamation of, 62
{see also Appendix) ; a self-govern-
ing Colony, 63 ; meanings of, 64 ;
origin of title, 65 ; legal origin of,
66 ; powers not limited by powers
of its government, ibid, {see also
Appendix, The Nature of Federal
Union) ; and States, 68 ; federation
of, ibid. ; territory of, 71 ; distribu-
tion of powers in, 82 ; inauguration
of, 230 ; as a party to suits, 259,
262, 265, 269.

Commonwealth Expenditure, 192.

Commonwealth Government, nature
of, 162.

Commonwealth Laws, relation to
Imperial and State Laws, 171,
172.

Commonwealth Purposes, 188.

Gommonwealth of Anstrcdia Gazette,
230.

Companies, Commonwealth power
over, 148; not within sec. 117, 298;
taxation by States, 299, 300.

Companies Acts, not in operation in
Colonies, 3.

Conciliation and Arbitration, 156.

Concurrent Powers, 136,

Consolidated Fund, 187.

Constitution, meaning of, 75, 78 ;
Courts in relation to, 234 ; of 1891,
see Draft Constitution of 1891.

Constitution of the Commonwealth,
founded on agreement, 75 ; federal-
ism of, 76 ; supremacy of, ibid. ;
rigidity of, 78 ; meaning of, 79 ;
supremacy in States, 80 ; interpre-
tation of, 81 ; national and federal,
101-105; alteration of, 316; demo-
cratic meaning of, 327 et seq. ;
development of, 330 et seq. ; in-
dividual liberties in, 329.

Constitutional Law, in the Common-
wealth, 78.

Constitutional Powers, appeals as to,
248, 249 ; see also Appeals to Privy
Council.

Constitutions of the Colonies, see
Colonial Constitutions ; States Con-
stitutions.

Constitutions of the States, see States
Constitutions.

Construction of legislative powers,
136, 200.

Consuls, federal jurisdiction over,
259, 261.

Contemporary Review, 54.

Convention, 1891, Sydney, 41 ; 1895,
proposals for national, 44 ; 1897 at
Adelaide, 46 ; 1897 at Sydney, 47 ;
1898 at Melbourne, 48.

Cooley, Judge, Coustittitional Limita-
tions, 83, 85, 89, 138, 166, 167, 179,
185, 215, 291, 297; Principles of
Constitutional Law, 88, 149, 152,
160, 187, 199, 205, 313, 317.

Copyright, Imperial and Common-
wealth powers, 169.

Copyrights, legislative power of Com-
monwealth, 147 ; power of Colonial
and of States legislatures, ibid.

Cornwall and York, Duke of, opens
First Commonwealth Parliament, 94.

Corporations, Commonwealth power
over, 148.

Cotton, Lord Justice, 110.

Court-Martial, not a Court within
Constitutional provisions as to
judicial power, 281.

Courts, in relation to legislative
power, 200, 235 ; in relation to
Constitution, 234 ; what are not,
281.

"Courts of any State," what are,
251.

Crimes, jurisdiction over, see Pardon-
ing Power ; State to provide for
custody of offenders, 285.

Criminal Cases, appeal from State
Courts, 254.

Criminals, influx of. Commonwealth
powers, 144.

Crown, proclamation of Common-
wealth, 62 ; union under, 73 ; claims
by and against, ibid. ; in Colonial
Governments, 73, 214 ; in Constitu-
tion, 73, 74 ; indivisibility, 74 ;
relation to States, 74, 287 ; included
in the Parliament, 92 ; demise of,
104 ; Executive power vested in,
214 ; powers granted to Governor-
General, 220 ; responsibility of
Governor-General to, 229 ; in litiga-
tion, 262 ; grant of territory by, 312.

2b

386

GENERAL INDEX.

Crown in Council, source of Colonial
laws and institutions, 1-18; appeals,
see Appeal to Privy Council.

Crown Lands, proposal to place under
federal government, 34; importance
of, 72.

Currency, 149.

Customs, restrictions withdrawn, 10 ;
see also Tariflf.

Customs, Excise, and Bounties, 195.

Customs Revenue, States entitled to
return of three-fourths, 191.

Dalley, W. B. (N. S. Wales), 59.

Darling, river, 268.

Deadlocks, procedure for avoiding,
124 ; in Constitutional alteration,
319 ; suggested recourse to sec. 128
in lieu of sec. 57, 332.

Deakin, Alfred (Victoria), 40, 45, 50,
229.

Deas, Thomson, 22.

Debts of States, 194.

Declaratory Laws, see Laws.

Defence, colonial powers, 10 ; Colonial
Conference (1887) on, 39; Major-
General Edwards' Report (1889),
40 ; legislative power over, 141 ;
Imperial laws relating to, 142 ; as
an Imperial matter within scope
of self-government, 223 ; Courts-
martial, 281,

Delegation of legislative power, 130.

Democracy, principal feature of the
Constitution, 327.

Dependencies of Commonwealth, 311.

Derby, Lord, 30, 38.

Dibbs, Sir G., 43, 44.

Dicey, Professor, 76; Conflict of Laws,
153, 155 ; Law of the Constitution,
237, 321 ; his article in Laio Quar-
terly Review, 321.

Dickson, Sir J. (Queensland), 50, 229.

Directory, 177, 179.

"Disability or Discrimination," mean-
ing of in sec. 117, 293 et seq.

Discrimination, in taxation, 181, 184,
185, 297 ; in railway charges, 207 ;
"unjust to any State," ambiguity
of, 282.

Discriminations, power of Inter-State
Commission, 207.

Disputed Elections, 113.

Dissolution, of Parliament, when to
be granted, 95 ; of House, 104 ; of
Senate in case of deadlocks, 125.

Divorce, 149.

Dominion of Canada, see Canada.

Downer, Sir John (S. Australia),
46.

Draft Constitution of 1 89 J, agreed to
at Sydney, 41 ; history of, 43 ;
compared with Commonwealth Con-
stitution, 286 ; provisions- as to
correspondence between Imperial
Government and States, 288 ; Im-
perialism of, 325.

Dufiy, Sir Charles Gavan, 22, 24, 27-29.

Edwards, Major-General, 40.

Emigration, 144.

English Laws, in force in Canada, 2.

Esher, Lord, 111.

Ex post facto Laws, 89.

Excise, 195.

Exclusive Jurisdiction, of Common-
wealth Courts, 202, 265-267 ; Parlia-
ment may determine, 268.

Exclusive Power, over certain terri-
tory, 71 ; over administrative
services, 141 ; Commonwealth Par-
liament, 162 ; over commerce, 199,
205 ; existing State laws as to
matters within, 309 ; over surren-
dered territory, 312.

Exclusive Powers, in Canada, 135 ;
of Commonwealth, 136.

Execution, State Courts cannot re-
strain execution of judgment of
Federal Courts, 27-^.

Executive Council, see Federal Execu-
tive Council ; in Colonies, 224-226.

Executive Officers, protection of, 161 ;
appointment, 225, 226 ; of Common-
wealth, jurisdiction over, 259, 269 j
and judicial functions, 281.

Elxecutive Power, see chapters xii.
and xiii. ; vested in the Crown, 82;
relation to legislative and judicial
power, 83 ; nature of, 210 ; extent
of, 213 ; in a federal system, 214 ;
in United States, 215 ; in Common-
wealth compared with Colonial
Constitutions, 217; pardoning
power as, 220 ; Inter-state Com-
mission and Courts-Martial belong
to, 281 ; delegation by Common-
wealth to States, 284.

Executors, powers of, 155.

Expenditure of Commonwealth, 192.

External Affairs, legislative powers
of Commonwealth, 142 ; pardoning
power in relation to, 218; functions
of department of, 231.

Extradition, not a judicial matter
except by Statute, 264.

Extra-territorial, operation of Com-
monwealth Laws, 134 ; matters,
135; trade and commerce in rela-
tion to States, 198.

GENERAL INDEX.

387

Extra-territorial Laws, of Colonial
Legislatures, 7 ; Governor's pro-
clamation under Merchant Ship-
ping Act, 11 ; of Commonwealth,
143 ; of States Legislatures in
United States, 291 ; in relation to
taxation, 297.

Family Law, Commonwealth power
over, 149.

"Federal," nature of Commonwealth,
67 ; provisions in Constitution,
76.

Federal Council, scheme of Act, 32,
33 ; nature, constitution, and work-
ing of, 37 ; Act repealed, 63 ;
Commonwealth, at request of State,
may exercise powers of, 159.

Federal Executive Council, nature
and functions of, 225 ; appointment
and tenure of members of, ibid.-,
appointment of First, 230.

Federal Jurisdiction, see cap. xvi.
and Index to texts of sees. 71-80.

Federal Movement, History of, see
History of Federal Movement.

Federation, responsible government
in, 123.

Field, Judge (U.S.A.), 161, 184.

Fiji, 29 ; not included in the Com-
monwealth, 64.

" Final and Conclusive," judgment of
High Court of Australia, 248.

Finance, 181-196.

Financial Relations, of States and
Commonwealth, 192.

Fisheries, legislative power of Com-
monwealth, 143.

Fitzroy, Sir Charles, Governor of
N.S. Wales, 19, 21.

Foreign Commerce, see Trade and
Commerce.

Forrest, Sir John (W. Australia), 229.

Forster, W. E., 326.

Forsyth, Cases and Opinions on Con-
stitutionaZ Law, 1 14.

France, in the Pacific, 29-31.

Freedom of Trade and Commerce, see
Trade and Commerce.

Freeman, 59 ; History oj Federal
Government, 364-366.

Frere, Sir Bartle, 223.

Friendly Suits, 237.

Fry, Lord Justice, 110.

Fysh, Sir Philip (Tasmania), 50.

Generality, see Laws.
Germany, legal centralization in, 327.
Gladstone, W. E., his Home, Rule
proposals, 321.

Governmental Agencies, not taxable,
186.

Governor of a Colony, Governor-
General as, 21 ; powers under
responsible government, 217; par-
doning power, 218 ; as Commander-
in-Chief, 221 ; and Governor in
Council, 224 ; validity of Instruc-
tions to, 230 ; former appellate
jurisdiction of, 251.

Governor of a State, represents the
Crown, 74 ; provisions of Constitu-
tion relating to, 286 ; provisions of
Draft Constitution of 1891 as to,
ibid. ; Constitution assumes con-
tinuance of, ibid. ; instructions, 288 ;
not Commander-in-Chief, ibid.'y
pardoning power, 289 ; powers
compared with Governor of a
Colony, ibid.

Governor-General, in early history,
21; H.M.'s Representative, 74, 92;
prerogatives exerciseable by, 92;
summons, prorogues, and dissolves
Parliament, 94 ; recommends money
grants, assents to legislation, advice
of Ministers, 95 ; in relation to
Parliament and legislation, 97 ;
executive powers derived from
Crown, 219, 220 ; pardoning power,
ibid. ; certain powers specially com-
mitted to, 221 ; as Commander-in-
Chief, ibid. ; how far powers exclu-
sive of exercise by Crown, ibid.\
effect of grant of powers to, 222;
and Governor-General in Council,
224 ; appoints Ministers of State
and Executive Council, 225, 226 ;
responsibility to Crown, 229 ;
validity of instructions to, 230 ;
appoints and removes Judges,
278

Granville, Earl, 26, 36, 150.

Grey, Earl, 20-22, 101.

Grier, Justice, 306.

Griffith, Sir Samuel (Chief -Justice
of Queensland), 33, 42, 43, 45,
76.

Gwynne, Justice, 168.

Habeas Corpus, 161 ; State and Com-
monwealth, powers, 272.

Halsbury, Lord, 239.

Hansard's Debates, 74, 321.

Hare, American Constitutional Law,
163, 172, 189, 271, 272, 299.

Harvard Law Review, 237, 312.

Health Laws, see Police Powers.

Hearn, Government of England, 140.

Herschell, Lord, 133.

b2

GENERAL INDEX.

High Court of Australia, see chapter
XV. and Index to text of sees.
73, 74 ; in the Constitution, 243 ;
appellate jurisdiction created, 246 ;
and Privy Council, when alterna-
tive of appeal, 252.
Hieinbotham, Chief Justice, 216, 222;
Constitutional opinions of, 216, 217,
229.
History of Federal Movement (chron-
ology) :

Governor Fitzroy's proposals,
(1837), 19.

Report of Committee for Trade
and Plantations (1849), 20.

Australian Constitution Bill, Earl
Grey's proposals (1850), 21.

Governor-General appointed

(1851), 21.

Colonial Constitutional Com-
mittees (1853), 22.

Wentworth's "General Associa-
tion for the Australian Colonies "
— memorial to Secretary of
State, and reply (1857), 23.

Committees in New South Wales
and Victoria — report of Victo-
rian Committee (1857), 24.

Attempts to secure Colonial Con-
ference (1858 to 1860), 24, 25.

Tariff difficulties and arrange-
ments (to 1873), 26, 27.

Policy of Imperial Government,
26.

Victorian Royal Commission, 27-
29.

Sir C. G. Duffy's Neutrality
scheme (1870), 29.

The Pacific Question, 29.

Annexation of New Guinea(1883),
30.

First Australasian Convention
(1883), 31.

Federal Council, scheme of (1883),
32.

Federal Council Act (1885), 33.

Period of Inter- Colonial Confer-
ences (1863-1883) reviewed, 33.

Character of Federal Council,
37.

The Conference of Premiers, 39.

Colonial Conference in London
(1887)— Colonial Defence, 39.

Report of Major-General Edwards
on Defence (1889), 40.

Australasian Federation Confer-
ence (1890), 40.

National Australasian Conven-
tion, Sydney (1891), 41.

Draft Constitution of 1891, 43.

Sir George Dibba' proposal (1894),

44.
Popular Movement — Australian

Natives Association, 44.
Corowa Conference (1893), 44.
Conference of Premiers at Hobart

(1895), 44.
The Federal Enabling Bills, 45.
Convention Elections (1897), 45.
Convention at Adelaide (1897), 46.
Convention at Sydney (1897), 47.
Convention at Melbourne (1898),

47.
First Referendum (1898), 47.
Opposition in New South Wales,

48.
Conference of Premiers at Mel-
bourne (1899), 49.
Second Referendum (1899-1900),

49.
Australasian Delegation to Lon-
don (1900), 50.
Conference and Negotiations in

London (1900), 51, 52.
The Appeal Question, 52.
Royal Assent (1900), 53.
General Conditions of Australasia
— comparison with Canada, 53-
56.
Federation not a necessity, 55.
Material prosperity, 56.
Politics in Australia, 57-
Colonial jealousy, 57.
Influence of Capitals, 58.
Lack of interest in Federation, 59.
Labour Party, 60.
Movement becomes popular, 61.
Holland, Law Quarterly Review, 261.
Home Affairs, functions of depart-
ment of, 231.
Honorary Ministers, 228.
House of Representatives, generally,
101 ; qualification of electors and
members, 105 ; disqualification for
membership. 111 ; vacation of seat,
112; relations with Senate, see
chapter vii.
Houses of the Parliament, address
for removal of Judges, 277.

Immigration, 144.

Imperial Acts, powers exerciseable
under, 292.

Imperial Affairs, certain matters
deemed reserved to Imperial Parlia-
ment, 10.

Imperial Federation, unconnected
with Australian federation, 326.

Imperial Government, policy in rela-
tion to tariff, 26 ; action of, 221.

GENERAL INDEX.

Imperial Laws, relation to Common-
wealth and State Laws, 165.

Imperial Parliament, its Acts "made
applicable " to Colonies, 2 ; its Acts
adopted in Colonies, 4 ; certain
matters deemed reserved to, 9 ;
Acts relating to tariff, 26 ; at
request of State, Commonwealth
may exercise powers of, 159.

Implied Powers, 162.

Incidental Powers, of Commonwealth,
160.

Inconsistency of State Laws with
Commonwealth Laws, 172, 173.

Industrial disputes, 156.

Infants, 149 ; powers of guardians,
155.

Injunction, against federal officer,
259, 269.

Insolvency, 146.

Inspection Laws, 196.

Instructions, as to receiving Bills,
95-97 ; to Governors, validity of, 230.

Insurance, 146.

Inter-Colonial Conferences, period
(1863-1883) of, reviewed, 33.

Inter-Colonial Process, 150.

Inter- State Commerce, see Trade and
Commerce.

Inter-State Commission, 205 ; relations
of its functions to judicial power,
209 ; appeals to High Court, 247 ;
not a Court, 281.

Intercourse, see Trade and Commerce.

Internal Afifairs, Constitutional powers
of Colonial Executive, 217.

International Law, matters between
States, 264 ; in Admiralty, 273.

Interpretation, not purely a judicial
function, 83, 84 ; of legislative
powers, 137 ; of Constitution and
Acts of The Parliament, federal
jurisdiction of, 259, 260, 269.

Intoxicating Liquids, 290, 305.

Invalid, effect of provision that State
Laws inconsistent with Common-
wealth Laws shall be, 172.

Invalid pensions, 156.

Iredell, Justice, 85, 259, 266.

Isaacs, J. H. (Attorney -General, Vic-
toria), 332.

Issue, of public money, 187.

James of Hereford, Lord, 239, 321.

Jenks, Professor, Government of Vic-
toria, 55.

Joint Sitting, remedy for deadlocks,
126.

Journal oj the Michigan Political
Science Association, 84.

Journal of the Society of Comparative
Legislation, 1, 17, 255.

Judges, in the Colonies, appointment,
remuneration, and tenure of, 276-
280; in the Commonwealth, ap-
pointment, remuneration, and
tenure, 278 et seq.

Judgments, of State Courts, 152.

Judicature, functions of national, 232 ;
in Canada, ibid.

Judicial Department, its dependencies,
279.

Judicial Notice, of State Laws, 154.

Judicial Power, vested in the Courts,
82 ; relation to legislative and
executive power, see Political Ques-
tions ; nature and limits of, 84 ; not
sole interpreter of Constitution,
ibid ; laws invading, 88, 89 ; com-
pared with legislative, 200 ; relation
to Inter- State Commission, 209 ;
guardian of the Constitution, com-
pared with Executive, 214 ; in
relation to Constitution, 233 ; rela-
tion to acts of legislature, 235 ;
attitude of Convention to, 236 ;
advantages and defects in relation
to determination of Constitutional
questions, 238, 239 ; distinct from
advisory opinions, 242 ; extent of,
ibid.; heads of, in Commonwealth,
243 ; vesting of, ibid. ; its nature in
United States, 258 ; functions which
are partly judicial and partly exe-
cutive, 281 ; Inter-State Commis-
sion and Courts- Martial not within,
ibid.

Judicial Proceedings, of States, 152.

Judiciary, interpretation of powers,
137 ; of States under State control,
233 ; independence of other powers,
ibid.

Justice, Administration of, legislative
powers of Commonwealth, 149.

Justices of the Peace, salaries not
alterable by Parliament, 192; not
within Constitutional provision as
to judicial power, 281.

Kent's Commentaries, 259.
Kimberley, Lord, 26.
King, Governor of N. S. Wales, 13.
Kingston, Premier of S. Australia,

42, 44-46, 50, 229.
Knutsford, Lord, 217.

Lands, see Crown Lands.
Langdell, Professor, 312.
Law Quarterly Beview, 76, 154, 261,
321.

390

GENERAL INDEX.

Laws, invading judicial power, 88, 89;
generality of, 89 ; declaratory, 90 ;
different aspects of the same law,
302.

•' Laws and Proposed Laws," 177.

Laws, Colonial, see Colonial Laws.

Laws, Ex post facto, 89.

Laws, Imperial, relation to Common-
wealth and State Laws, 165.

" Laws of England," in force in
Colonies, 2 ; repugnancy to, 6.

Laws of the Commonwealth, relation
to Imperial and State Laws, 171,
172.

Laws of the States, see State Laws.

Lefroy, A. H. F., Legislative Power
in Canada, 8, 76, 86, 129, 132, 138,
166, 108, 169, 197, 218.

Legal Tender, 149.

Legislation, suggested recourse to
Constitutional alterations, 332.

Legislative Power, in Colonial Con-
stitutions, 77 ; vested in the Par-
liament, 82 ; relation to executive
and judicial power, 83 ; what is, 86;
of Commonwealth Parliament,
chapter viii. ; delegation of, 130 ;
compared with judicial, 200 ; legal
limitations enforced by Courts, 234 ;
restraints on , in Australian Colonies,
235 ; subjects of, in Commonwealth
Parliament, chapter ix.

Legislative Poiver of the Parliament,
90.

Legislative Powers, construction of,
136.

Legislative Questions, compared with
judicial, see Political Questions.

Legislatures, Colonial, see Colonial
Legislatures.

Lewis, N. E. (Tasmania), 229.

LewiSj Government of Dependencies,
3, 364.

Lex et consuetudo Parliamenti, not
applicable to Colonial Legislatures,
114.

Liabilities, of Commonwealth, 190.

Lighthouses, 142.

Lightships, 142.

Lindley, Lord Justice, 110.

"Local and territorial legislatures,"
7, 9 ; applicability to Commonwealth
Parliament, 143 ; State Parliaments
as, 291.

Lopes, Lord Justice, 110.

Lowell, Governments and Parties in
Continental Europe, 127, 363.

Lunatics, powers of guardians, 155.

Lyne, Sir William (N. S. Wales),
229.

Macdonald, Sir John, 326.

Mackey, J. E., 332.

Macy, Jesse, The English Constitution,
75.

Madison, Virginia Report, 282.

Mandamus, against federal officer,
259, 269, 271, 274.

Mandatory, 179 ; provisions for
amendment are, 317.

Mansfield, Lord, 261.

Marriage, Commonwealth power over,
149.

Marshall, Chief -Justice John, 69, 135,
137, 138, 163, 183, 186, 197, 198,
202, 266, 303, 332 ; Life of Wash-
ington, 241.

Matrimonial Causes, 149.

" Matter," meaning, 260, 264.

"Matters," referred by State Par-
liaments, 158.

May, Parliamentary Practice, 114,
115, 175.

Melbourne Age, 231, 332.

Melbourne, Convention at, 47 ; Con-
ference of Premiers at, 49, 52.

Mellish, Lord Justice, 86.

Members of House, numerical rela-
tion to Senators, 102.

Mercantile Law, Commonwealth
powers over, 145.

Merivale, H., 23.

Meteorology, 142.

Military, see Courts-Martial: Defence:
Governor-General.

Miller, Justice (U.S.A.), 162, 294.

Ministers of State, not disqualified
for Parliament, 112.

Ministers, Honorary, 228.

Molteno, Mr. , 223.

Money Bills, recommendation by the
Governor-General, 115; procedure,
118 ; effect of procedure, 124.

"Monroe Doctrine," Australia, 145.

Morris, Edward E. , Memoir of George
Higinhotham, 217.

Munroe, Constitution of Canada, 134.

Murray, river, 26, 35, 268.

National Review, 43.
Naturalization, legislative power of

Commonwealth, 144.
Naturalization Laws, validity of

Colonial, 10.
Naval and Military, see Defence :

Governor-General : Courts-Martial.
Neutrality, of Colonies, Sir Charles

Duffy's scheme, 27-29.
New Caledonia, 29.
New Guinea, annexation of, 30.
New Hebrides, 30, 31.

GENERAL INDEX.

391

New South Wales, a Settlement
Colony, 2 ; Charter of Justice, 4 ;
sources of laws and institutions, 12 ;
federal movement in, 22 ; fiscal
policy, 26 ; refusal to join Federal
Council, 38 ; opposition to Con-
vention Constitution, 48 ; electoral
law, 107 ; Executive Council in,
226 ; present conditions of appeal
to Privy Council, 256.

New States, 310.

New Zealand, attitude towards Com-
monwealth Constitution Bill, 51 ;
relation with Pacific Islands, 145;
legislation of, 156 ; appointment of
Judges, 279.

Newcastle, Duke of, 22, 34.

O'Connor, R. E. (N.S. Wales), 46,

229.
OflBce under the Crown, Attorney -

General of Colony holds, 74.
Ofiicers, see Executive Oflficers.
Official Report of Debates^ Melbourne,

267.
Old-age pensions, 156.
O'Loghlen, Sir Bryan (Attorney-
General for Victoria), 74.
Opinions of Law Offix^ers, 147.
Orders, Colonial, sources of Colonial

Law, 11.
Orders, Prerogative, sources of

Colonial institutions, 5.
Orders, Statutory, Imperial, as source

of Colonial Laws, 4.
Original jurisdiction, 350, 351.
Original States, 311.

Pacific Islands, their importance in
federal movement, 29 ; relation to
the Commonwealth, 64 ; power of
Commonwealth over relations with,
144.

Pardoning Power, in responsible gov-
ernment and in the (~!ommonwealth,
218, 219 ; in Government of a State,
289

Parker, Q.C. (New Zealand), 50.

Parkes, Sir Henry, 29, 32, 34, 37-40,
42-45, 56, 65 ; Fifty Years in the
making of Australian History,
226.

Parlement Beige, 261.

Parliament, Imperial, see Imperial
Parliament.

Parliament of the Commonwealth,
preponderance of, 90 ; its constitu-
tion, 92; summoning, proroguing,
and dissolving, 94; power as to
Imperial Laws, 167 ; relation to

Executive power, 215 ; powers
under special Imperial Acts, 292.

Parliamentary Procedure, 90, 115 ;
defect of form in legislation, 175.

Parliaments, States, function in rela-
tion to Federal Government, 97.

Patent Laws, police power in relation
to, 302.

Patents, 147.

Patterson, Justice, 85.

Payment of Members, 113.

" Peace of the Commonwealth," 213.

"Peace, Order, and good Govern-
ment," 128.

Peel, Sir Robert, 228.

Penal Laws, 272.

Petitions of Right, 220 ; in Colonies,
statutory provisions, 265.

Phillimore, Sir Robert, 261.

Phillip, Governor, 13.

Plehn, Carl, Public Finance, 183.

Plural Voting forbidden, 107.

Police Power, of States in relation to
commerce, 200 ; in the States,
300-304 ; in United States described,
301, 303.

Political Questions, 84, 237 ; uni-
formity of regulations of commerce,
199 ; as to executive action, 214 ;
outside judicial power, 260, 261,
263.

Port Phillip, separation from N.S.
Wales, 20, 21.

Posts, 142.

Powers, separation of, in Constitution,
86 ; separation of, not found in
Colonies, ibid.

Preference, Undue, 185 ; "to any
State," ambiguity of, 283.

Preferences, by States, 199 ; on rail-
ways, 206 ; powers of Inter-State
Commission, 207.

Premiers, Conference of, tended to
supersede Federal Council, 39 ; at
Hobart, resolutions for election of
a national convention (1895), 44 ;
at Melbourne, to consider amend-
ments to Constitution, 49 ; at Mel-
bourne, on appeal question (1900),
52.

Prerogative, source of Colonial Insti-
tutions, 1 ; in Colonies, 73 ; powers
in relation to Commonwealth Par-
liament, 94 ; in relation to executive
powers of Commonwealth, 217 ;
power of Colonial legislatures over,
254; of hearing appeals, 247, 248,
254.

Prerogative Orders, sources of Colonial
Institutions, 5.

392

GENERAL INDEX.

Private International Law, relation
to Constitution, 154; part of law of
States, 291, 293 ; growth of, 327.

Privilege of Parliament, 114.

Privy Council, 51 ; inter-relation of
Canadian Constitution, 74 ; inter-
pretation of Colonial Constitutions,
77, 86 ; power over acts of Colonial
Legislatures, 234.

Procedure, Parliamentary, 90, 115;
defect of form in legislation, 175.

Process, intercolonial, 150; legislative
power of Commonwealth in regard
to State Courts, 152 ; civil and
criminal, 156.

Proclamation of Commonwealth, 62,
338.

Prohibition, against federal officer,
259, 269.

Promissory Notes, 146.

Property, or governmental power,
questions of, 71, 72 ; acquisition,
159 ; acquisition of State property,
ihid. ; of a State, not taxable, 185 ;
Commonwealth to compensate State
for property taken over, 192.

Proportionate Representation, 103 ;
in Tasmania, 104 ; of States, altera-
tion of, 320, 322.

" Proposed Laws," 177.

•* Purposes of the Commonwealth ," 1 88 .

Quarantine, power of Commonwealth,
142 ; Laws within police power,
302, 303.

Queen-in-Council, see Appeals to
Privy Council.

Queensland (originally part of N.S.
Wales), sources of laws and institu-
tions, 16; annexes New Guinea, 30;
railway tax, 58; electoral law, 107;
present conditions of appeal to
Privy Council, 256.

Queen's Ministers of State, appointed
by Governor-General : must be
members of Parliament : tenure
and salary, 226.

Queen's Ministers of State for Com-
monwealth, not disqualified for
Parliament, 112.

Queen's Ministers for a State, not
disqualified for Parliament, 112.

Quick, Sir John (Victoria), 44.

Quick and Garran, Annotated Consti-
tution of the Australian Common-
wealth, 45, 109.

Races, Coloured, special laws for, 144.
Railway and Canal Commission, in
England, 205.

Railways, policy of Colonies, 58 ; in
relation to defence, 141 ; acquisition
and construction, 157 ; within
power over trade and commerce,
157, 198 ; unreasonable charges
may be a tax, 202 ; development
rates, and preferences on, 206 ;
character of disputes in Australia
as to, 207, 208.

Randolph, his article in Harvard
Law Review , 312.

Recognition, of laws, etc., of States,
155.

Reeves, W, P., Agent-General, New
Zealand, 50.

Referendum, on Convention Constitu-
tion, 47 ; on amended Constitution,
49, 318 et seq.; suggested as remedy
for deadlocks, 124 ; for alteration of
State boundaries, 315.

Reid, Premier of N.S. Wales, 44, 49,
52.

Relations, of legislature, executive,
and judiciary, 83 ; of legislative
authorities, 165.

Relations, Financial, of States and
Commonwealth, 192.

Religion, Commonwealth may not
make laws in respect to, 307.

Renton, Wood, 255.

" Repugnant to Laws of England," 6.

Resident, in a State, 297.

Residents, in different States, federal
jurisdiction over, 259, 262.

Responsible Government, in the Con-
stitution, 90, 226, 325; Colonial
conditions, 117; relation of Minis-
try to Upper House, 122 ; applica-
bility to Federal Government, 123 ;
in law of Colonies, 217 ; pardoning
power under, 220 ; military affairs
in, 222; appointment of Ministers
and other Officers, 224 ; in England
and Colonies compared, 226, 227 ;
legal or conventional character of,
229.

Rivers, Parliament may not abridge
State rights, 198 ; power of Inter-
State Commission, 208 ; riparian
rights, 268.

Rorer, Inter-State Law, 206.

Royal Assent, 95.

Russell, Lord John, 228.

Salmond, article in Law Quarterly

Review, 154.
Savannah river, 264.
Scrutton, on Copyright, 147.
Seat of Government, 71, 162.
Second Chamber, 118.

GENERAL INDEX.

Seeley, Political Science, 364.

Selborne, Lord (Sir Roundell Palmer),
87, 129, 175, 277.

"Self-governing Colony," Common-
wealth is, 63.

Senate, generally, 97 ; vacancy in, 99 ;
communitas communitatum, 101 ;
qualification of electors, 105 ; rela-
tions with House of Representatives,
116 ; powers as to Money Bills, 118;
guardian of State interests, 123 ;
dissolution of, 125.

Senator, vacation of seat, 99.

Senators, qualification of, 99 ; nume-
rical relation to members of House,
102; disqualification. 111.

Sergeant, On the Constitution, 281.

Service, Mr. (Premier of Victoria),
31, 35, 36.

Settlement Colonies, status of, 2.

Shipping, special powers of Colonial
legislatures, 10 ; Imperial and Com-
monwealth Laws, 169 ; included in
trade and commerce power, 198.

Ships, operation of Commonwealth
Laws on certain British, 134.

Smith, Goldwin, 54 ; Canada and the
Canadian Question, 365.

Smith, Sir Montague, 137.

Sources of Colonial Laws, 1-18.

South Australia, sources of laws and
institutions, 16 ; fiscal policy, 26 ;
electoral law, 107 ; Money Bills in,
120 ; dissolution of Legislative
Council, 126 ; present conditions
of appeal to Privy Council, 256 ;
conflict of Courts and Legislature,
277.

Stamp Act (1765), 3.

State, in United States, police power
and power over inter -state com-
merce, 200 ; may not tax inter-
state commerce, 203 ; in United
States, regulations of trade and
commerce in impairment of freedom,
ibid. ; validity of regulations of
inter -state commerce, 204; police
power of, 204 ; in relation to Inter-
State Commission, 207 ; preference
or discrimination, which is unjust
to, ibid. ; ambiguity of, in the Con-
stitution, 282 ; may not discriminate
against subjects resident in other
States, 293 et seq. ; preference by or
to, see Preference : Undue Prefer-
ence.

State Courts, supremacy of Common-
wealth Constitution and laws in,
80 ; judgments of, 152 ; alternative
appeals to Privy Council or High

Court, 252 ; appeal when acting in
federal jurisdiction and in criminal
cases, 254, 274; no jurisdiction
over claims against Common-
wealth, 262 ; concurrent jurisdic-
tion, 262, 268, 274; cannot issue
mandamus to federal ofiicer, 269,
272, 274 ; habeas corpus, 272 ;
appeals from, 349.

State Debts, Commonwealth may take
over, 194.

State Governor, see Governor of a
State.

State Laws, "law of the State," ques-
tion of construction, 108 ; ultra vires,
136 ; impairing freedom of trade,
148 ; recognition throughout the
Commonwealth, 152, 154 ; judicial
notice, 154 ; relation to Common-
wealth Law, 172 ; saving of, 308.

State, Ministers for, not disqualified
for Parliament, 112.

State Parliament, power over copy-
right, 147 ; powers of, 290.

State Parliaments, members of Com-
monwealth Parliament disqualified,
113; territorial limitations, 291;
powers under Imperial Acts, ibid.;
power of taxation, 299 ; compared
with State and Provincial Legisla-
tures in United States and Canada,
304.

States, New, 310.

States, political conditions of, 63 ; in
the Commonwealth Act, 63, 68 ;
origin of powers of, 68 ; Crown in,
74 ; supremacy of Commonwealth
Constitution in, 79 ; may not main-
tain military forces, 141 ; may not
coin money, 149 ; separate law dis-
tricts, 155 ; legislation by Common-
wealth Parliament on reference by,
or at request or concurrence of,
158, 284 ; acquisition of property
of, 159 ; financial assistance to,
193 ; financial responsibilities in
connection with railways, 207 ; rail-
way disputes of, 207, 208 ; federal
jurisdiction over, 259 ; matters
between, 262 et seq.; when suable,
262 et seq. ; and State Governments,
283 ; instruments of Constitution,
ibid. ; delegation of powers to, 284 ;
duty to provide for custody of
offenders against Commonwealth
Laws, 285 ; relation to Crown :
relations with Imperial Govern-
ment, 287 ; powers of taxation, 297 ;
police power, 300 ; territory of, 310
et seq. ; division of, 314 ; separate

394

GENERAL INDEX.

consents required for certain altera-
tions of Commonwealth Constitu-
tion, 320 ; see also the several
States.

States Constitutions, preserved, 285 ;
what are, 286 ; not part of the
Commonwealth Constitution, ibid.;
alterable by States, 287.

States Courts, appeals to High Court,
246.

States Parliaments, function in rela-
tion to Federal Government, 97.

States Powers, preserved, 285.

Statistics, 142.

Story, J., Commentaries on the Con-
stitution of the United States y 155,
173, 232, 271, 279, 281, 282, 317.

Studies in International Law, 261.

Suffrage, see Senate : House of Repre-
sentatives ; one elector one vote,
106 ; adult, 108 ; in the States, see
the several States.

Switzerland, mode of altering Con-
stitution compared with Common-
wealth, 316.

Sydney, National Australasian Con-
vention at, 41, 47.

Tacking, 121.

Taney, C. J., 301.

Tariff, early difficulties and proposals,
20, 25-27 ; history to 1873, 20-26.

Tasmania (originally part of N.S.
Wales), sources of laws and in-
stitutions, 113; electoral law, 107;
present conditions of appeal to
Privy Council, 257.

Taxation, 181-187; power over, 181;
of inter -state commerce, 202; dis-
tinguished from charges for services,
ibid. ; powers of States, 297.

Tea Duty (1770), 3.

Telegraphs, 142.

Telephones, 142.

Territorial Limitations, of Colonial
Laws, 7 ; on legislative power, 291 ;
on taxing power, 297.

Territories, meaning of, 311, 312;
government of, 312; may return
members to Parliament, ibid.

Territory, Limits of, Colonial Bounda-
ries Act, 9 ; when Colonies may
alter, 7.

Territory of the Commonwealth,
meanings of, 71 ; seat of Govern-
ment, 162.

Territory of States, 310.

Thayer, Professor J. B., The Origin
and Scope of the American Doctrine
of Constitutional Law, 84; Evidence

at the Common Laio, 154 ; Cases on
Constitutional Law, 281, 301.

Thompson, Sir John, 169.

Todd, Parliamentary Government in
the British Colonies, 95, 97, 131,
222, 223, 239, 253, 260, 278.

Trade, 196-209.

Trade and Commerce, 197 ; freedom
of, in relation to patent and copy-
right laws of State, 147 ; internal
commerce not within Common-/*
wealth power, 198 ; preference by
or to States, 199 ; concurrent or
exclusive power, 199, 205; Consti-
tution and power of Inter-State
Commission, 205.

Trade and Commerce in Common-
wealth, relation to police power of
State, 304.

Trade and Commerce in United
States, power of congress, 199 ;
power of State, ibid. ; relation to
police power, 303-305.

Trade and Commerce, Foreign and
Inter-State, nature of, 197 ; what
included or not in, 198.

Trade and Commerce, "Freedom of,"
vagueness of, 201.

Trade and Commerce, Freedom of
Inter-State, suggested meanings,
202 ; restraint on Commonwealth
Parliament and on States, ibid. ;
impaired by taxation, ibid. ; im-
paired by restrictions not in nature
of a tax, 203.

Trade Marks, 147.

Treaties, federal jurisdiction over,
259, 261 ; legal or political matters,
261.

Turner, Sir G. (Victoria), 44, 229.

Ultra Vires, limitation of powers of
Colonial legislatures, 9 ; States
Laws, 136; what statutes are, 165;
proposal for testing, 236.

" Unconstitutional," meaning of, 79 ;
grounds on which Statutes are,
165.

Undue or Unreasonable, see Prefer-
ence, Undue Preference.

Undue Preference, 185 ; on railways,
206 ; powers of Inter-State Com-
mission, 207.

Uniform duties of Customs, 195.

Uniformity, of taxation, 184; of com-
mercial regulation, 200 ; of Customs,
effect of, 202 ; of electoral qualifica-
tion, 320 ; of laws, 327.

United States, origin of, compared
with Commonwealth, 67 ; separa-

GENERAL INDEX.

395

tioii of powers iii, 85 ; commerce
power in, 199 ; Courts in relation
to legislative power, 200, 235 ;
police power in, 200, 301, 303;
freedom of inter-state trade and
commerce, 203 ; Inter-,State Com-
mission, 205 ; vesting of executive
power, 215 ; proposed checks on
legislative power, 235; nature and
limitations of judicial power, 258,
266 ; Courts-martial in, 218 ; States
as delegates of federal power, 284 ;
territorial limitations in States
legislatui^es, 291 ; protection of
individual liberties in, 294 ; power
of taxation by States, 298 ; "terri-
tories" in, 311; amendment of
Constitution, 316; model of Aus-
tralian federation, 325 ; character
of Constitution, 326 ct seq. ; develop-
ment of Constitution, 331.

" Unjust to any State," 207.

" Uiitil the Parliament otherwise
provides," 160, 193, 194.

Validity : see Inconsistency : Invalid :
Procedure: "Laws and Proposed
Laws. "

Vice- Admiral, State Governor is, 289.

Victoria (originally part of N.S.
Wales), sources of laws and institu-
tions, 15 ; federal movement in, 22 ;
Royal Commission of 1870, 26 ;
fiscal policy, ibid. ; electoral law,
107; deadlocks in, 124; responsible
government in, 216 ; Executive
Council in, 225 ; present conditions
of appeal to Privy Council, 257 ;
Courts as guardians of Constitution,
277 ; Income Tax on absentees,
298.
Victorian Government Gazette, 288, 289,
Victorian Parliamentary Papers, 29,
39.

Washington, Justice, 173.

Weights and Measures, 146.

Wellington, Duke of, 228.

Wentworth, 22, 23.

Western Australia, sources of laws
and institutions, 17 ; relation to
federal movement, 50, 51 ; electoral
law, 107 ; financial provisions re-
lating to, 194 ; present conditions
of appeal to Privy Council, 257.

Winthrop, Military Law, 281.

Women, as electors, 110 ; as members
of Parliament, 111.

OLASGOW : PRINTED AT TIIK L'NIVKRSlTy PRKSS BY ROBERT MACLKHOSK ASD CO,

.:^

1

■"^e^^ject to i„„ed.ate recall.

«al^U°-Veo

■no 2

THE UNIVERSITY OF CALIFORNIA LIBRARY